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CASES 


ON 


THE  LAW  OF  EVIDENCE 


SELECTED  AND  ARRANGED 


BY 


THOMAS  WELBURN  HUGHES 

PROFESSOR   OF   LAW,    WASHBURli   COLLBaB 
TOPBKA.    KAN. 


Callaghan  &  CoMPAinr 

CHICAGO 
1921 


T 

Himi    ey 


COPYRIGHT   1921 

BY 

CALLAGHAN    &    CX)MPANY 


PREFACE. 

By  the  case  method  of  instruction  the  student  acquires  a  knowledge 
not  only  of  the  rules  and  principles  of  the  law,  but  also  of  their  ap- 
plication to  particular  facts;  and  the  latter  is  quite  as  important  as 
the  former. 

The  chief  criticism  of  this  method  of  instruction  is  that  too  much 
ground  has  to  be  covered  for  the  amount  of  knowledge  acquired. 
This  criticism  applies  with  greater  force  to  long  cases.  In  the  present 
volume  the  cases  are  short  and  confined  to  the  points  of  Evidence 
involved.  All  matter  contained  in  the  reported  cases  not  pertaining 
to  Evidence  has  been  eliminated. 

Nearly  all  of  the  cases  in  this  volume  are  American  cases ;  and 
most  of  them  have  been  recently  decided.  These  features,  it  is  be- 
lieved, will  be  appreciated  both  by  teachers  and  students. 

Many  of  the  cases  contained  herein  contain  brief  discussions  of 
English  cases  which  enable  the  student  to  acquire  a  knowledge  of 
the  origin  and  historical  development  of  the  various  rules  and  prin- 
ciples of  Evidence  and  their  exceptions. 

Some  topics  in  the  law  of  Evidence  require  more  extended  dis- 
cussion than  others.  Thus,  the  Rule  against  Hearsay  and  its  excep- 
tions, the  Best  Evidence  Rule  and  the  Parol  Evidence  Rule  require 
extended  discussion.  Owing  to  this  fact  many  cases  herein  pertain 
to  these  topics. 

To  the  trial  lawyer  Evidence  is  the  most  important  subject  in  the 
law  curriculum.  It  is  the  one  subject  that  he  must  have  at  the  tip 
of  his  tongue.  It  comprises  many  rules  and  exceptions  and  should 
be  taught  in  law  schools  for  at  least  five  hours  a  week  for  one  semester. 

T.  W.  Hughes. 


667460 


TABLE  OF  CONTENTS 

PART    I 

PAG^ 

Province  of  the  Court  and  the  Jury  i 

PART    II 

WITNESSES 

Competency    i6 

Privileged  Communications   42 

Examination  of  Witnesses   TJ 

PART    III 

PRINCIPLES   AND    RULES   OE   EXCLUSION 

Relevancy   and   Materiality    144 

Character    156 

Admissions  and   Confessions    175 

The   Rule   Against   Hearsay    190 

Former  Evidence    193 

Dying   Declarations    210 

Declarations  Relating  To  Pedigree 237 

Declarations  Against  Interest  By  Persons   Since  Deceased   ....  277 

Declarations  Relating  To  Public  and  General  Interests   301 

Public  and  Ancient  Documents   311 

Account  Book  Entries   321 

Declarations  In  Regular  Course  of  Business   365 

Declarations  Forming  Part  of,  Or  Relating  To,  The  Res  Gestae,  373 

Opinion  Evidence   453 

Res  Inter  Alios   490 

Telegrams  and  Conversations  By  Telephone 503 

Joint  Crime  and  One  Acquitted 515 

V 


vi  Cases  on  Evidence 

PART    IV 

PAGE 

Real  Evidence  519 

PART    V 

DOCUMENTARY  EVIDENCE 

Alterations    550 

The  Best  Evidence  Rule  587 

The  Parol  Evidence  Rule  673 

PART    VI 
Weight  and  Sufficiency  826 

PART    VII 

TOPICS  NOT  PECUI.IAR  TO  EVIDENCE 

Judicial   Notice    854 

Presumptions    880 

Burden  of  Proof , 893 


Cases  On  Evidence 


PART  I. 
PROVINCE  OF  THE  COURT  AND  OF  THE  JURY.* 

ALFRED  FAIRBANK  v.  B.  HUGHSON. 
58  Col.  314.    (1881) 

Appeal  from  a  judgment  for  the  defendant  and  from  an  order 
denying  a  new  trial  in  the  Superior  Court  of  San  Joaquin  County. 

McKee,  J.  The  principal  issue  in  this  case  involved  the  genuine- 
ness of  the  signature  of  the  defendant  to  the  instrument  in  writing 
upon  which  the  plaintiff  sought  to  recover  in  the  action. 

On  the  trial  of  the  issue  the  plaintiff  put  in  evidence  eight  receipts 
which  were  admitted  to  have  been  signed  by  the  defendant,  and  called 
a  number  of  witnesses  to  testify  as  to  the  genuineness  of  the  paper 
sued  on,  by  comparison  with  the  signatures  of  the  receipts.  In  reply 
to  which  the  defendant  called  one  W.  H.  Taylor  as  an  expert  in  hand- 
writing, who,  being  examined  as  to  his  qualifications,  testified  that  he 
had  been  a  book-keeper  for  eight  years  in  two  banks  in  the  city  of 
Stockton.  In  that  capacity  he  had  examined  signatures  and  writings 
more  or  less,  although  his  business  did  not  require  him  especially  to 
examine  them,  and,  as  he  was  only  a  book-^keeper,  and  had  not  been 
called  upon  to  examine  signatures,  he  did  not  consider  himself  to  be 
an  expert.  Counsel  for  plaintiff  thereupon  objected  to  his  testimony 
on  the  ground  that  he  was  not  an  expert. 

The  Court.  "I  shall  hold  it  is  for  the  jury  to  say  how  much  he 
knows  about  it.     I  will  admit  the  testimony." 


^Hughes  on  Evidence,  p.  26. 

(I) 


2  Cases  on  Evidence 

This  was  error.  Whether  one  offered  as  an  expert  is  qualified  to 
speak  as  such,  is  a  fact  preHminary  to  his  testifying  as  such,  to  be 
determined  by  the  court  at  the  trial.  It  cannot  be  referred  to  the 
jury.     (Jones  v.  Tucker,  41   N.   H.  546.) 

Judgment  and  order  reversed  and  cause  remanded  for  a  new  trial. 

Ross,  J.  and  McKinstry,  J.,  concurred. 


HIGGINBOTHAM,  executor,  v.  CAMPBELL. 
S3  Ga.  639.     (i8po) 

New  trial.  Charge  of  court.  Fraud.  Practice.  Before  Judge 
Maddox.  Floyd   Superior  Court.     Sept.  term,   1889. 

Bleckley,  Chief  Justice.  In  this  case,  a  deed  of  conveyance,  made 
by  a  mother  tp  her  son,  was  attacked  as  having  been  procured  by  the 
son  through  fraud  committed  upon  his  mother.  The  object  of  the 
attack  was  to  set  aside  and  cancel  the  deed.  The  jury  found  in  favor 
of  the  plaintiff.  The  court,  on  motion  of  the  defendant,  granted  a 
new  trial,  and  the  plaintiff  excepted. 

In  the  trial  of  civil  cases,  the  responsibility  for  the  law  of  the  case 
rests  wholly  upon  the  judge.  The  jury  must  take  it  from  him,  and  as 
he  expounds  it,  with  no  concern  on  their  part  for  the  correctness  or 
incorrectness  of  his  exposition.  Instead  of  so  instructing  the  jury, 
the  judge  charged  them  that  they  were  the  judges  of  the  law  and 
the  facts  which  had  been  submitted  to  them.  Whilst  in  one  sense 
this  was  not  absolutely  incorrect,  for,  in  civil  as  well  as  criminal  cases, 
the  jury  apply  the  law  to  the  facts,  and  exercise  that  degree  of  judg- 
ment upon  it  which  is  necessarily  involved  in  doing  so;  still,  such 
instructions,  unattended  with  a  caution  to  accept  the  law  as  announced 
by  the  courts  might  be  misleading.  The  jury  could  understand  them 
as  implying  the  same  functions  on  their  part  with  reference  to  the 
facts,  and  knowing  that  it  was  upon  them  to  ascertain  and  settle 
what  the  facts  really  were,  they  might  think  they  had  the  same  office 
to  perform  touching  the  law.  They  might  conclude  that  they  were 
to  recognize  as  law  that  which  they  thought  it  was  rather  than  that 
which  the  judge  said  it  was.  It  is  true  that  the  danger  of  such  mis- 
take was  not  imminent,  but  that  it  existed  at  all,  by  reason  of  an 
inaccurate  expression  from  the  bench,  might  very  properly  render  the 
judge  desirous   of  an   opportunity   to  correct  it  on  a   future  trial, 


Province  of  the  Court  and  of  the  Jury  3 

especially  if  he  had  any  doubt  of  the  correctness  of  the  verdict,  in  so 
far  as  it  involved  elements  of  law  as  distinguished  from  matters  of 
fact. 

^  Judgment  affirmed. 


AGNES   CAIRNS,   executrix,   v.   JOHN   MOONEY. 
62  Vt.  172.     (1890) 

Action,  assumpsit.  Plea,  the  general  issue.  Trial  by  jury,  at  the 
September  Term,  1889.  Powers,  J.,  presiding.  Verdict  and  judg- 
ment for  the  plaintiff.     Exceptions  by  the  defendant. 

The  plaintiff  sued  for  the  price  of  certain  apples  sold  by  her  testator 
to  the  defendant.  The  defendant  claimed  that  the  quality  of  the 
apples  was  not  according  to  the  contract,  and  offered  to  so  testify 
himself.  To  his  testimony  the  plaintiff  objected,  for  that  the  other 
party  to  the  contract  was  dead.  Thereupon  the  defendant  insisted, 
and  his  evidence  tended  to  show,  that  the  contract  was  not  made  with 
the  testator  but  with  his  son,  acting  as  his  agent.  The  court  excluded 
the  evidence. 

Taft,  J.  The  defendant  was  not  a  competent  witness,  "unless  the 
contract  in  issue  was  originally  made  with  a  person  who  is  (was) 
living  and  competent  to  testify."  The  defendant  claimed  that  the 
contract  for  the  apples  was  made  with  Harvey  Cairns,  acting  as 
agent  for  the  testate,  and  who  was  present  at  the  trial  and  testified. 
Conceding  that  the  testimony  of  the  defendant's  witness  tended  to 
establish  the  fact  of  agency,  the  question  was  one  for  the  court.  The 
defendant  insists  that  he  should  have  been  permitted  to  testify,  and 
the  question  of  agency  submitted  to  the  jury,  and  if  they  found  it 
established,  they  should  then  consider  the  testimony  of  the  defendant 
upon  the  various  points  upon  which  he  gave  testimony,  and  if  they 
did  not  find  the  fact  of  agency  proved,  reject  the  testimony.  It  was  a 
question  of  competency  or  incompetency  of  the  defendant  as  a  wit- 
ness, and  that  question  is  always  for  the  court,  and  should  never  be 
submitted  to  the  jury,  i  Green.  Ev.  (14th  Ed.)  s.  49  and  note  a; 
I  Tay.  Ev.  s.  21;  Bartlett  v.  Smith,  11  M.  &  W.  483;  Reg.  v.  Hill, 
5  Eng.  L.  &  Eq.  547;  Cook  v.  Mix,  11  Conn.  432;  Holcomb  v.  Hol- 
comb,  28  Conn.  177;  Harris  v.  Wilson,  7  Wend.  57;  Reynolds  v. 
Lounsbury,  6  Hill  534;  Dole  v.  Winslow,  12  Met.  157;  McManagil 


4  Cases  on  Evidence 

V.  Ross,  20  Pick,  99.  In  some  jurisdictions  it  has  been  held  that, 
in  doubtful  cases,  it  is  not  improper  to  refer  the  existence  of  the  facts 
upon  which  the  competency  depends  to  the  jury;  and,  in  some  in- 
stances, it  is  intimated  that  it  should  be  done.  Hartford  F^  Ins.  v. 
Reynolds,  '<,o  Mich.  502;  Johnson  v.  Kendall,  20  N.  H.  304;  Bartlett 
V.  Hoyt,  33  N.  H.  151;  Dart  v.  Heilner,  3  Rawle,  407;  Gordon  v. 
Boicens,  16  Penn.  St.  226;  Haynes  v.  Hemsicker,  26  Penn.  St.  58. 

Questions  of  fact  affecting  the  admissibility  of  testimony  often 
arise,  and  it  would  be  very  inconvenient,  if  not  impracticable,  to  sub- 
mit them  to  the  decision  of  a  jury.  The  testimony  as  to  the  com- 
petency of  a  witness,  and  that  of  the  witness  as  to  the  issues  upon 
trial,  would  all  go  to  the  jury  with  directions  that  if  they  found  the 
w^itness  incompetent,  it  would  be  their  duty  to  disregard  his  evidence 
upon  the  main  issues,  which  in  many  instances  it  might  be  impossible 
to  do.  Having  heard  the  illegal  testimony  discussed  by  counsel,  the 
confusion  which  would  probably  arise  in  separating  the  legal  from 
illegitimate  testimony  would  no  doubt  lead  to  the  rendition  of  erro- 
neous verdicts,  with  no  relief  for  the  unfortunate  party;  and  cer- 
tainly this  should  not  be  the  rule  in  a  jurisdiction  where  the  admission 
of  illegal  evidence  is  not  cured  by  a  direction  from  the  court  to 
disregard  it.  State  v.  Hopkins,  50  Vt.  316;  State  v.  Header,  54  Vt. 
126;  Hall  V.  Jones,  55  Vt.  297;  Rob.  Dig.  700,  pi.  55. 

In  Cook  v.  Mix,  supra,  the  question  was  whether  the  witness  had 
an  interest  in  the  event  of  the  suit  and  the  court  said  it  "was  a  ques- 
tion of  fact  to  be  determined  on  the  evidence  before  the  court.  It  is 
claimed  in  the  first  place,  that  the  judge  mistook  the  law  in  not  sub- 
mitting this  question  to  the  jury,  and  this  claim  has  been  gravely 
urged  before  this  court.  It  is  sufficient  to  observe  that  the  clairri  is 
unfounded  as  it  is  novel,  that  it  has  no  support  either  in  principle  or 
authority,  and  is  utterly  incapable  of  being  reduced  to  practice." 

It  is  not  by  any  means  true  that  all  questions  of  fact  in  a  jury 
trial  must  be  left  to  the  jury;  numerous  instances  where  the  court 
passes  upon  such  questions  can  be  readily  called  to  mind,  e.  g.,  whether 
a  witness  is  an  expert;  or  a  dying  declarant  entertained  hopes  of 
recovery;  or  a  writing  to  be  used  as  a  test  in  comparison  of  hand- 
writing is  proved;  or  a  witness  has  sufficient  mental  capacity  to  tes- 
tify, or  is  the  husband  or  wife  of  the  party;  or  declarations  are  so 
far  a  part  of  the  res  gestae  as  to  be  admissible;  or  a  confession  was 
induced  by  threats;  or  a  document  has  been  duly  or  sufficiently 
stamped;  or  sufficient  search  has  been  made  for  a  lost  document  to 
warrant  the  introduction  of  secondary  evidence.    Many  other  instances 


Province  of  the  Court  and  of  the  Jury  5 

might  be  given.  In  the  beginning  of  a  jury  trial,  suppose  a  woman 
is  offered  as  a  witness  for  the  plaintiff  and  the  defendant  objects 
for  that  she  is  the  wife  of  the  plaintiff.  The  question  is  purely  one 
of  fact.  Will  anyone  claim  that  her  testimony  should  be  given  upon 
the  main  issues,  and  the  question  of  whether  wife  or  not  be-  left  to 
jury,  and  then  if  they  find  her  to  be  the  wife,  discard  her  testimony, 
but  if  not,  consider  it?  Conceive  that  in  a  suit  in  favor  of  several 
plaintiffs  the  question  should  arise  in  respect  to  each  one.  Well  might 
the  Connecticut  court  characterize  the  claim  of  the  defendant  as  un- 
founded as  it  was  novel.  The  court  below  not  being  satisfied  from 
the  evidence  that  the  contract  in  issue  was  made  with  the  agent  of  the 
testate,  properly  held  the  defendant  incompetent. 

Judgment  affirmed. 


COMMONWEALTH  v.  GEORGE  A.  CULVER  et  al. 
126  Mass.  464.     (1879) 

Indictment  on  the  Gen.  Sts.  c.  161,  §  12,  charging  the  defendants 
with  breaking  and  entering,  on  March  27,  1876,  the  shop  of  George 
M.  Crawford,  at  Ayer,  with  intent  to  steal. 

At  the  trial  in  the  Superior  Court,  before  Allen,  J.,  the  govern- 
ment offered  to  prove  confessions  made  by  the  defendant.  The  de- 
fendants objected  to  their  admission,  on  the  ground  that  they  were 
made  in  consequence  of  offers  of  favor  made  to  the  defendants  by  the 
officer  who  arrested  the  defendants  and  had  them  in  custody ;  that 
these  offers  were  carried  to  the  defendants  by  request  of  the  officer, 
before  the  confessions  were  made;  and  that  the  confessions  were  in- 
duced by  the  offer. 

At  the  suggestion  of  the  judge,  the  government  called  as  a  wit- 
ness the  officer  who  made  the  arrest ;  and  he  denied  that  he  made 
any  offers  of  favor  to  the  defendants,  or  had  caused  any  offers  of 
favor  to  be  carried  to  the  defendants  by  others.  The  defendants 
then  offered  to  call  five  different  witnesses  to  prove  the  truth  of  their 
claim,  and  asked  the  judge  to  hear  them,  and  first  to  determine 
whether  the  confesssions  ought  to  be  received.  The  judge  declined 
to  admit  the  evidence  at  that  stage  of  the  case  but  admitted  the  con- 
fessions. 

The  jury  returned  a  verdict  of  guilty;  and  the  defendants  alleged 
exceptions. 


6  Cases  on  Evidence 

Lord,  J.  The  only  question  which  this  case  presents  is  whether 
it  was  error  in  the  presiding  judge  to  refuse  to  hear  the  evidence 
offered  by  the  defendants,  at  the  time  it  was  tendered,  relating  to 
the  inducements  held  out  to  the  defendants  for  the  purpose  of  ob- 
taining the  confessions  offered  in  evidence  by  the  government;  and 
we  think  it  was.  There  is  undoubtedly  a  large  discretion  vested  in  the 
presiding  justice  at  a  trial,  in  reference  to  its  conduct  and  to  the 
order  of  proofs.  In  this  case,  when  the  evidence  was  offered  by  the 
government,  it  was  objected  to  as  incompetent.  Its  competency  was 
a  question  of  law,  and  was  to  be  decided  by  the  court.  Prima  facie, 
it  was  competent;  but  the  defendants  contended  that  it  was  incom- 
petent by  reason  of  certain  extrinsic  facts.  It  was  for  the  defendants 
to  establish  those  facts,  and  it  was  the  duty  of  the  presiding  judge 
to  ascertain  whether  they  existed,  before  admitting  the  evidence.  It 
appears  by  the  bill  of  exceptions,  that,  when  the  confessions  of  the 
defendants  were  offered  in  evidence,  they  objected  to  such  confes- 
sions, upon  the  ground  "that  they  were  made  in  consequence  of  offers 
of  favor  made  to  the  defendants  by  the  officer  who  arrested  the 
defendants  and  had  them  in  custody."  If  this  were  true,  and  the 
defendants  could  establish  the  fact,  the  confessions  were  incompetent 
evidence.  It  was  the  duty  of  the  presiding  judge  to  determine  that 
fact,  upon  hearing  all  competent  evidence  upon  it  which  was  tendered 
by  either  party.  In  the  absence  of  all  evidence,  the  presumption  is 
that  a  confession  is  voluntary;  and  when  the  party  confessing  objects 
that  confessions  are  not  voluntary,  he  is  called  upon  to  show,  at  least 
enough  to  rebut  such  presumption.  Instead,  however,  of  calling  upon 
the  defendants  thus  to  repel  the  presumption,  the  presiding  judge 
suggested  that  the  officer  be  called  by  the  district  attorney ;  and  he 
was  called  and  denied  having  made  offers  of  favor  to  the  defendants 
to  induce  the  confessions.  The  defendants  then  offered  to  call  five 
different  witnesses  to  prove  the  truth  of  their  claim.  The  court  de- 
clined to  admit  the  testimony,  "at  that  stage  of  the  case,  but  ad- 
mitted the  confessions."  That  however,  was  the  only  stage  of  the 
case  at  which  the  evidence  could  be  admitted  for  the  purpose  for 
which  it  was  offered,  to  wit,  to  show  that  the  proposed  confessions 
were  incompetent. 

We  are  aware  that  it  is  not  an  uncommon  practice  in  the  trial  of 
criminal  causes,  when  confessions  of  a  defendant  are  offered  in  evi- 
dence, and  objected  to  upon  the  ground  that  they  were  improperly 
obtained,  for  the  presiding  judge  to  allow  the  confessions,  and  all 
the  evidence  bearing  upon  the  manner  in  which  they  were  obtained, 


Province  of  the  Court  And  of  the  Jury  7 

to  be  submitted  to  the  jury,  either  to  be  rejected  by  the  jury  wholly, 
or  to  be  allowed  such  weight  as  under  the  circumstances  the  jury 
deem  it  proper  to  give  them.  This,  however,  as  we  understand  it,  is 
rather  by  consent  than  otherwise,  neither  party  desiring  to  take  the 
decision  of  the  presiding  judge  upon  the  question  of  competency. 
There  may  be,  however,  and  commonly  are,  two  questions:  first,  the 
competency  of  the  evidence,  and,  secondly,  the  weight  of  the  evi- 
dence. The  former  is  always  a  question  of  law,  the  latter  is  always  a 
question  of  fact.  The  prisoner  has  always  the  right  to  require  of 
the  judge  a  decision  of  the  competency  of  the  evidence;  and  even 
after  the  judge  has  decided  the  evidence  to  be  competent,  the  pris- 
oner has  the  right  to  ask  of  the  jury  to  disregard  it,  and  to  give  no 
weight  to  it,  because  of  the  circumstances  under  which  the  confes- 
sions were  obtained.  In  the  case  at  bar,  however,  the  counsel  for 
the  prisoners  insisted  upon  their  right  to  have  the  judge  decide  upon 
the  competency  of  the  evidence,  and  tendered  evidence  of  its  incom- 
petency ;  this  evidence  it  was  the  duty  of  the  presiding  judge  to  hear. 
The  evidence  having  been  tendered  at  a  stage  of  the  case  in  which 
it  was  the  duty  of  the  defendants  to  offer  it,  and  the  presiding  judge 
^having  refused  to  hear  it  at  that  time,  the  exception  to  his  refusal  to 
hear  it  must  be 

Sustained. 


EDWIN  F.  CONELY  v.  HENRIETTA  McDONALD. 
40  Mich.  150. 

Appeal  from  an  order  of  the  Probate  Court  admitting  to  probate 
an  instrument  purporting  to  be  the  last  will  of  Firth  A.  McDonald. 
The  plaintiff  in  error  was  named  as  executor  in  this  instrument,  and 
was  designated  by  the  Probate  Court  as  the  representative  on  the 
appeal,  of  all  the  parties  interested.  The  Circuit  Court  directed  the 
framing  of  an  issue,  and  the  plaintiff  in  error  appeared  as  proponent 
of  the  instrument,  and  alleged  that  it  was  the  last  will  and  testament 
of  Firth  A.  McDonald,  and  that  at  the  time  of  its  execution  he  pos- 
sessed the  necessary  lawful  qualifications  to  its  due  execution  by  him. 
The  appellant  and  contestant,  who  was  the  widow  of  McDonald, 
pleaded  the  general  issue  with  notice  that  she  would  show  that  the 
instrument  relied  on  was  not  her  husband's  last  will;  that  its  execu- 


8  '  Cases  on  Evidence 

tion  was  obtained  by  fraud  and  undue  influence  of  Joel  McDonald 
and  others;  that  Firth  A.  McDonald  was  of  unsound  mind  and  mem- 
ory when  he  signed  and  executed  it,  and  that  its  provisions  were 
contrary  to  the  just  and  legal  rights  of  the  appellant.  The  jury  found 
that  the  instrument  propounded  was  not  the  last  will  and  testament 
of  Firth  A.  McDonald,  and  it  was  so  adjudged.  The  proponent 
Conely  brought  error. 

Marston,  J.  Under  the  issues  as  framed  in  this  case,  evidence 
tending  to  show  undue  influence  was  competent  and  admissible  in 
evidence.  The  court  in  charging  the  jury,  being  of  opinion  that  upon 
this  branch  the  testimony  did  not  tend  to  show  undue  influence,  with- 
drew that  question  from  their  consideration. 

After  the  evidence  was  all  in,  counsel  for  proponent  requested  the 
court  to  instruct  the  jury,  ist,  "There  is  no  evidence  in  the  case  tend- 
ing to  show  that  the  testator  when  he  executed  the  will  in  controversy 
was  in  any  respect  of  unsound  mind,  and  the  jury  are  therefore 
bound  to  assume  that  he  was  fully  competent  to  make  such  a  will;" 
2nd,  "Upon  the  whole  case  the  verdict  must  be  for  the  proponent." 
These  requests  were  refused  and  to  the  charge  as  given  no  exceptions 
were  taken. 

It  was  not  seriously  disputed  on  the  argument  but  that  there  was 
testimony  in  the  case  tending  to  show  that  the  testator  did  not  have 
sufficient  capacity  to  make  the  will  in  question.  It  was,  however, 
urged  very  strenuously  that  there  was  not  sufficient  evidence,  all  of 
which  is  returned,  to  sustain  the  verdict  in  this  case,  and  conse- 
quently that  the  second  above  request  to  charge  should  have  been 
given. 

We"  had  supposed  that  the  law  was  well  settled  in  this  State  as 
to  the  duty  of  the  court  under  such  circumstances.  It  is  true  the 
question  may  not  have  been  discussed  at  length,  and  the  authorities 
bearing  thereon  cited  in  any  one  particular  case,  but  the  question  has 
frequently  been  referred  to  and  acted  upon  in  cases  where  perhaps,  at 
least  in  some  of  them  it  was  of  minor  importance.  As  the  question 
is  one  of  importance  in  this  case,  and  has  been  ably  argued  and  au- 
thorities cited,  more  especially  the  decisions  of  the  English  courts  and 
of  the  Supreme  Court  of  the  United  States,  it  may  be  well  to  con- 
sider the  matter  at  some  length  and  see  what  the  true  rule  is  or 
should  be  in  all  such  cases,  and  in  the  light  thereof  determine  the 
controversy  in  this  case.  In  England  the  rule  is  laid  down  that  a  scin- 
tilla of  evidence  clearly  would  not  justify  the  judge  in  leaving  the 
case  to  the  jury;  that  there  must  be  evidence  on  which  they  might 


Province  of  the  Court  and  of  the  Jury  9 

reasonably  and  properly  conclude  that  the  issue  was  proven.  See 
Ryder  v.  Womhell,  Law  Rep.,  4  Exch.,  38,  where  many  of  the  cases 
are  collected  and  citations  therefrom  given. 

In  Hickman  v.  Jones,  9  Wall.,  201,  the  court  instructed  the  jury 
to  acquit  the  defendants.  Swayne,  J.,  said:  "There  was  some  evi- 
dence against  both  of  them.  Whether  it  was  sufficient  to  warrant 
a  verdict  of  guilty  was  a  question  for  the  jury  under  the  instructions 
of  the  court.  The  learned  judge  mingled  the  duty  of  the  court  and 
jury,  leaving  the  jury  no  discretion  but  to  obey  the  direction  of  the 
court.  Where  there  is  no  evidence,  or  such  a  defect  in  it  that  the 
law  will  not  permit  a  verdict  for  the  plaintiff  to  be  given,  such  an 
instruction  may  be  properly  demanded,  and  it  is  the  duty  of  the  court 
to  give  it.  To  refuse  is  error.  In  this  case  the  evidence  was  received 
without  objection,  and  was  before  the  jury.  It  tended  to  maintain, 
on  the  part  of  the  plaintiff,  the  issue  which  they  were  to  try.  Whether 
weak  or  strong,  it  was  their  right  to  pass  upon  it.  It  was  not  proper 
for  the  court  to  wrest  this  part  of  the  case,  more  than  any  other, 
from  the  exercise  of  their  judgment.  The  instruction  given  over- 
looked the  line  which  separates  two  separate  spheres  of  duty.  Though 
correlative,  they  are  distinct,  and  it  is  important  to  the  right  adminis- 
tration of  justice  that  they  should  be  kept  so.  It  is  as  much  within 
the  province  of  the  jury  to  decide  questions  of  fact  as  of  the  court  to 
decide  questions  of  law.  The  jury  should  take  the  law  as  laid  down 
by  the  court  and  give  it  full  effect.  But  its  application  to  the  facts — 
and  the  facts  themselves — are  for  them  to  determine.  These  are  the 
checks  and  balances  which  give  to  the  trial  by  jury  its  value.  Ex- 
perience has  approved  their  importance.  They  are  indispensable  to 
the  harmony  and  proper  efficacy  of  the  system.     Such  is  the  law." 

Assuming  that  the  English  rule  as  already  stated,  which  was  fol- 
lowed and  approved  in  Commissioner  v.  Clark,  94  U.  S.  284,  means 
just  what  is  said,  that  a  scintilla  of  evidence  would  not  justify  the 
judge  in  leaving  the  case  to  the  jury,  I  can  fully  concur  therein.  Such 
a  rule  would  be  no  more  than  what  has  repeatedly  been  followed  in 
this  state.  In  Kelly  v.  Hendrie,  26  Mich.  256,  it  was  said:  "If, 
upon  any  point  essential  to  a  recovery,  the  evidence  bearing  on  it  is 
open  to  but  one  meaning,  and  that  meaning  is  plainly  and  neces- 
sarily adverse  to  the  plaintiff,  then  he  has  no  ground  of  complaint" 
if  the  court  takes  the  case  from  the  jury.  There  may  be  a  "scintilla" 
in  other  words  a  "spark"  or  "the  least  particle"  of  evidence  in  a  case, 
and  yet  fall  far  short  of  what  is  essential.  It  frequently  happens  on 
the  trial  of  a  cause  that  proof  of  one  fact  has  of  itself  a  tendency  to 


10  Cases  on  EviDENCfi 

prove  others  which  are  material  and  necessary  to  establish  the  cause 
of  action,  while  in  other  cases  each  fact  is  so  separate  and  distinct 
that  proof  of  one  raises  no  presumption  whatever  in  support  of  an- 
other. 

As  was  said  in  Perrot  v.  Shearer,  17  Mich,  54,  whether  evidence 
bearing  upon  a  certain  point  tends  to  establish  it  or  not,  may  depend 
not  alone  upon  that  particular  item  of  evidence,  but  upon  that  con- 
sidered in  its  relation  to  other  evidence  which  may  so  far  qualify  and 
explain  it  that  it  shall  have  no  tendency  whatever  to  prove  the  posi- 
tion for  which  it  was  offered,  and  which  if  it  were  the  sole  evidence 
in  the  case  it  might  appear  to  establish.  The  duty  to  examine,  weigh 
and  compare  in  these  cases  is  not  entrusted  to  the  judge;  these  are 
matters  lying  within  the  peculiar  province  of  the  jury. 

In  Berry  v.  Lowe,  10  Mich.,  15,  where  the  question  came  up  on  writ 
of  error,  it  was  said:  "If  the  alleged  error  is  a  total  want  of  evidence 
to  prove  some  fact  necessary  to  sustain  the  judgment,  the  court  will 
look  into  the  testimony  to  see  whether  there  was  such  evidence  or 
not.  If  there  was,  it  will  not  weigh  it,  or  inquire  into  its  sufficiency, 
but  affirm  the  judgment.  If  the  return  shows  no  such  evidence,  and 
it  appears  all  the  testimony  before  the  justice  has  been  returned,  the 
judgment  will  be  reversed  on  the  ground  that  the  justice  erred,  in 
law,  in  rendering  the  judgment  he  did  without  such  evidence."  Or 
as  was  said  in  Hyde  v.  Nelson,  11  Michigan,  357,  where  the  question 
came  up  on  certiorari,  "It  is  only  when  there  is  an  entire  absence  of 
proof  upon  some  material  fact  found,  that  such  finding  becomes  erro- 
neous as  a  matter  of  law." 

The  doctrine  laid  down  in  these  cases  has  always  been  strictly 
adhered  to  in  this  State.  In  addition  to  the  cases  already  cited,  see 
Blackwood  V.  Brown,  32  Mich.,  107,  and  authorities  there  referred 
to;  Mans  v.  White,  37  Mich.,  130,  and  Elliott  v.  Van  Buren,  33  Mich., 
52,  where  it  was  said  to  be  "not  in  the  province  of  an  appellate  court 
to  consider  the  amount  of  the  verdict  or  the  weight  of  the  evidence, 
the  court  of  trial  may  set  aside  a  verdict  which  violates  justice,  and 
it  is  to  that  tribunal  that  parties  must  apply  for  relief  against  exces- 
sive damages  or  any  other  of  the  wrongs  for  which  it  may  be  right 
to  grant  a  new  trial.  We  are  bound  in  all  cases  to  assume  that  the 
jury  have  done  no  legal  wrong  when  acting  within  their  province." 

It  seems  to  me  that  this  is  the  only  safe  rule.  Under  our  system 
of  jurisprudence,  the  jury  is  called  to  pass  upon  the  facts. 

It  is  not  only  their  privilege  but  their  right  to  judge  of  the  suffi- 
ciency of  the  evidence  introduced  to  establish  any  one  or  more  facts 


Province  of  the  Court  and  of  the  Jury  ii 

in  the  case  on  trial.  The  credibility  of  witnesses,  the  strength  of 
their  testimony,  its  tendency  and  the  proper  weight  to  be  given  it, 
are  matters  peculiarly  within  their  province.  The  law  has  constituted 
them  the  proper  tribunal  for  the  determination  of  such  questions. 
To  take  from  them  this  right  is  but  usurping  a  power  not  given. 
The  jury  should  be  left  entirely  free  to  act  according  to  their  own 
judgment.  Where  there  is  a  total  defect  of  evidence  as  to  any  essen- 
tial fact,  or  a  spark,  the  least  particle,  a  scintilla  as  it  is  termed,  the 
case  should  be  withdrawn  from  the  consideration  of  the  jury.  Where, 
however,  the  evidence  introduced  has  a  legal  tendency  to  make  out 
a  proper  case  in  all  its  parts,  then,  although  it  may  in  the  opinion 
of  the  trial  court  or  the  Appellate  Court  be  slight,  inconclusive,  and 
far  from  satisfactory,  yet  it  should  be  submitted  to  the  jury,  whose 
proper  province  it  is  to  consider  and  determine  its  tendency  and 
weight 

When  there  is  a  total  want  of  evidence  upon  some  essential  fact, 
but  the  jury  nevertheless  find  such  fact,  the  finding  is  erroneous  as 
matter  of  law,  but  when  there  is  slight  evidence  in  support  thereof 
a  finding  thereon  would  be  one  of  fact,  upon  which  men  might  diflPer 
in  opinion,  but  for  a  court  to  attempt  the  correction  thereof  upon 
writ  of  error  would  be  a  correction  of  errors  in  fact  and  not  in  law, 
a  power  which  this  court  does  not  possess. 

We  are  of  opinion  that  there  was  evidence  in  this  case  which  tended 
to  prove  the  issue  made.  The  weight  and  effect  thereof  was  rightly 
left  to  the  jury  under  proper  instructions,  and  their  finding  we  have  no 
power  to  review. 

The  proceedings  must  be  affirmed.  The  cause,  however,  was  prop- 
erly brought  into  this  court,  and  the  costs  should  be  paid  out  of  the 
estate  in  all  the  courts.  It  must  be  certified  accordingly  to  the  circuit 
and  probate  courts. 

The  other  Justices  concurred. 


GRACE  MICHAEL,  Appellee,  v.  O.  E.  MATSON,  Appellant. 
8i  Kan.  5^0.     (1909) 

Appeal  from  Harvey  District  Court;  Peter  J.  Galle,  Judge.     Opin- 
ion filed  Dec.  11,  1909.     Reversed. 

Mason,  J.     O.  E.  Matson  while  mayor  of  Burrton,  verified  a  com- 


12  Cases  on  Evidence 

plant  charging  M.  M.  Michael  and  Grace  Michael,  his  wife  with 
violating  the  prohibitory  law,  and  caused  their  arrest.  The  county 
attorney  refused  to  prosecute  and  the  case  was  dismissed.  Grace 
Michael  brought  action  against  Matson  for  malicious  prosecution  and 
recovered  a  judgment  for  $600,  from  which  he  appeals. 

We  think  the  verdict  must  be  set  aside  for  the  reason  that  the 
instructions  were  so  worded  as  naturally  to  lead  the  jury  to  under- 
stand that  they  were  the  judges  of  what  constituted  probable  cause, 
and  their  findings  show  that  they  probably  acted  upon  that  under- 
standing. There  is  some  conflict  on  the  subject,  but  the  great  pre- 
ponderance of  authority  favors  the  view  that  the  question  of  what 
facts  are  sufficient  to  constitute  probable  cause  is  one  of  unmixed 
law.  (26  Cyc.  107;  19  A.  &  E.  Encycl.  of  L.  669.)  Courts  which 
acquiesce  in  the  general  statement  of  the  rule  sometimes  refuse  an 
unqualified  application  of  it.  For  illustration,  it  was  approved  in 
Fagnan  v.  Knox,  66  N.  Y.  525,  Erb  v.  German  American  Ins.  Co., 
112  Iowa,  357,  and, Hamilton  v.  Smith,  39  Mich,  222,  227,  but  denied 
application  in  Heyne  v.  Blair,  62  N.  Y.  19,  Donnelly  v.  Burkett,  75 
Iowa,  612,  and  Davis  v.  McMillan,  142  Mich.  391,  This  court,  how- 
ever, has  consistently "  adhered  to  it  and  given  it  practical  effect. 
(Drumm  v.  Cessnum,  58  Kan.  331 ;  Railway  Co.  v.  Allen,  70  Kan. 
743.)     In  the  Drumm-Cessnum  case  it  was  said-: 

"Where  the  facts  are  disputed,  it  must  be  left  to  the  jury  to  de- 
termine what  the  facts  are,  but  the  court  should  instruct  what  facts 
amount  to  probable  cause  for  an  arrest  and  what  do  not.  The  court 
should  summarize  the  claims  of  the  parties,  and  state  to  the  j\iry  what 
basis  of  fact  must  exist  to  show  probable  cause,  and  what  will  sus- 
tain the  claim  of  a  want  of  probable  cause."     (Page  333) 

In  the  present  case  the  court  gave  this  instruction: 

"You  are  instructed  that  to  constitute  probable  cause  for  criminal 
prosecution  there  must  be  such  reasonable  grounds  of  suspicion,  sup- 
ported by  circumstances  sufficiently  strong  in  themselves,  to  warrant 
an  ordinarily  cautious  man  in  the  belief  that  the  person  arrested  is 
guilty  of  the  offense  charged,  and  in  this  connection  you  are  further 
instructed  that  a  mere  belief  that  an  innocent  person  is  guilty  of  a 
crime  is  not  alone  sufficient  to  justify  causing  his  or  her  arrest.  The 
facts  must  be  such  as  would  justify  an  ordinary,  intelligent  and  rea- 
sonably prudent  person  in  entertaining  such  belief.  Whether  in  this 
case  such  facts  had  come  to  the  knowledge  of  the  defendant  at  the 
time  he  entered  the  complaint  against  the  plaintiff  is  a  question  of 


Province  of  the  G)URT  and  of  the  Jury  13 

fact  for  the  jury  to  determine,  from  a  preponderance  of  the  evi- 
dence." 

This  definition  of  what  constitutes  probable  cause  is  doubtless  suf- 
ficiently accurate,  although  the  use  of  "cautious"  in  place  of  "prudent" 
has  been  criticised.  (McClafferty  v.  Philip,  Appellant,  151  Pa.  St. 
86.)  As  it  is  not  the  province  of  the  jury  to  determine  what  circum- 
stances would  induce  a  reasonably  prudent  man  to  believe  another 
guilty  of  a  crime,  there  seems  to  be  no  purpose  in  the  giving  of  an 
abstract  instruction  on  the  subject. 

"Inasmuch  as  the  question  of  probable  cause  is  always  to  be  de- 
termined by  the  court  from  the  facts  in  each  particular  case,  it  would 
seem  unnecessary  to  give  to  the  jury  any  definition  of  the  term  or 
any  instruction  upon  abstract  propositions  relating  to  this  subject. 
These  abstract  rules  will  guide  the  court  in  determining  the  question, 
but  are  apt  to  lead  the  jury  away  from  their  function  of  passing  upon 
the  effect  of  the  evidence  in  support  of  the  probative  facts  which  the 
court  may  direct  them  to  find  in  order  to  determine  in  which  way 
their  general  verdict  shall  be  rendered."  (Ball  v.  Rawles,  93  Cal. 
222,  233.) 

Nevertheless  such  an  instruction  is  ordinarily  not  prejudicial,  where 
the  charge  includes  a  statement  of  what  facts  would  amount  to  prob- 
able cause  in  the  case  on  trial.  (Jonasen  v,  Kennedy,  39  Neb.  313, 
319,  320.)  The  diflficulty  here  is  that  the  last  sentence  of  the  in- 
struction quoted,  although  open  to  a  different  construction,  naturally 
tended  to  lead  the  jury  to  understand  that  they  were  to  decide  for 
themselves  whether  the  facts  known  to  the  defendant  when  he  caused 
the  plaintiff's  arrest  were  such  as  would  justify  an  ordinarily  prudent 
person  in  believing  her  guilty.  This  misleading  tendency,  if  not  cor- 
rected by  a  clear  and  accurate  statement  of  what  concrete  facts  would 
justify  a  reasonable  belief  of  guilty,  is  a  ground  for  reversal,  unless 
it  can  be  said  from  the  record  that  the  jury  were  not  in  fact  misled. 
The  inference  from  the  findings,  however,  is  to  the  contrary. 

Belief  that  probable  cause  exists  for  the  arrest  of  a  person  is 
obviously  a  different  thing  from  a  belief  that  he  is  guilty.  The  latter 
is  often  said  to  be  an  essential  ingredient  of  probable  cause,  although 
many  of  the  definitions  omit  it.  (26  Cyc.  29;  19  A.  &  E.  Encycl.  of 
L.  663;  6  Words  and  Ph.  Jud.  Def.  p.  5620  et  seq.;  note  Am,  St. 
Rep.  140.)  The  former  has  no  materiality  in  this  kind  of  an  action 
unless  as  bearing  upon  the  question  of  malice.  A  man  may  cause  an 
arrest  under  a  reasonable  belief,  founded  on  abundant  evidence  that 
the  accused  person  is  guilty.    Yet  he  may  suppose,  through  ignorance 


14  Cases  on  Evidence 

of  the  law,  that  "probable  cause"  does  not  exist,  and  that  if  he  fails 
to  procure  a  conviction  he  is  answerable  in  damages.  Plainly  he 
would  not  be  liable  under  such  circumstances.  Probable  cause  would 
exist  in  fact  and  would  afford  him  a  perfect  defense,  whatever  might 
be  the  result  of  the  prosecution.  The  instruction  given  in  this  respect 
was  clearly  erroneous  and  under  the  circumstances  of  the  case  must 
be  deemed  to  have  been  prejudicial. 

The  judgment  is  reversed  and  a  new  trial  ordered. 

Notes.  Very  generally,  issues  of  law  must  be  decided  by  the  court.  In  a 
few  states,  however,  including  Connecticut,  Maryland,  Indiana,  Illinois  and 
Louisiana,  issues  of  law,  as  well  as  issues  of  fact,  are,  in  criminal  cases,  de- 
cided by  the  Jury.  This  is  owing  to  provisions  in  the  state  constitutions  or 
statutes. 

Mixed  Issues  of  law  and  fact  are  for  the  Jury  to  decide  under  proper  in- 
structions by  the  court.  The  following  are  examples  of  this  class  of  issues: 
whether  a  certain  article  constitutes  baggage;  whether  certain  real  estate 
constitutes  a  homestead;  whether  a  certain  instrument  is  a  deadly  weapon; 
whether  certain  goods  are  necessaries;  whether  a  certain  homicide  was  com- 
mitted in  self-defense;  whether  a  husband  has  abandoned  his  wife;  whether 
a  certain  act  performed  on  Sunday  was  a  work  of  charity  or  necessity. 

The  distinction  between  an  issue  of  fact  and  a  mixed  issue  of  law  and  fact 
?s  this:  The  subject-matter  of  the  former  has  its  natural  meaning,  and  is 
not  governed  by  rules  of  law.  Hence  no  occasion  arises  for  instructions  by 
the  court.  Whereas  the  subject-matter  of  the  latter  is  within  the  definition 
of  some  rule  of  law,  and  for  this  reason  possesses  certain  attributes  other 
than  those  possessed  by  it  naturally.  Hence  the  court  is  required  to  instruct 
tlie  jury  as  to  the  legal  definition  of  the  term. 

Upon  principle,  the  question  of  want  of  probable  cause.  In  an  action  for 
malicious  prosecution,  is  a  fact  for  the  jury  to  decide.  But,  on  the  ground  of 
public  policy,  the  court  decides  it.  This  anomaly  is  to  encourage  persons  to 
make  complaints  against  criminals  and  to  protect  them  when  sued  for 
malicious  prosecution.  In  England  the  reason  for  the  anomaly  is  much 
greater  than  in  this  country,  but  our  courts  follow  the  English  decisions. 

Cases  arise  where  courts  are  bound,  owing  to  insuflBciency  of  the  evidence, 
to  withdraw  them  from  the  jury.  Others  arise  where  courts  may,  in  their 
discretion,  withdraw  them  from  the  jury.  But,  as  stated  in  Hyghes  on 
Evidence,  pages  27,  28,  "This  function  is  one  which  should  be  exercised  only 
In  very  clear  cases.  It  should  never  be  exercised  when  the  evidence,  if 
material,  is  conflicting;  nor  when  impartial  minds  might  honestly  and 
reasonably  draw  different  conclusions  therefrom.  If  the  facts  are  undisputed 
or  admitted,  whether  such  facts  constitute  a  legal  cause  of  action,  or  a  legal 
defense,  is  a  question  for  the  court  to  decide.  To  justify  a  withdrawal  of 
the  case  from  the  jury,  on  the  request  of  one  of  the  parties,  the  e;^idence  of 
the  opposite  party  must  be  assumed  to  be  true  and  all  legitimate  inferences 
therefrom  must  be  in  his  favor.  A  mere  scintilla  of  evidence  in  support  of 
any  theory  of  the  case  is  not  of  itself  sufficient  to  prevent  a  withdrawal.  If 
at  the  close  of  the  plaintiff's  case  there  is  no  evidence  at  all  to  prove  a  mate- 


Province  of  the'  Court  and  of  the  Jury       15 

rial  fact  essential  to  recovery,  the  court,  on  the  request  of  the  defendant.  Is 
bound  to  instruct  the  jury  to  find  a  verdict  for  the  defendant.  If,  however, 
such  request  is  not  made  until  after  the  defendant  has  introduced  evidence 
which  tends  to  prove  such  material  fact,  the  court  may  refuse  to  so  instruct 
the  jury.  "Where  there  is  any  material  evidence  tending  to  prove  all  the 
material  requisites  to  a  recovery  the  trial  judge  is  bound  to  submit  the  case 
to  the  jury  without  regard  to  wh'at,  at  the  time,  he  may  think  he  would  do 
on  a  motion  for  a  new  trial." 

The  usual  mode  of  raising  the  question  of  withdrawal  of  the  csise  from  the 
jury  Is  by  motion  for  a  nonsuit,  or  by  a  request  that  the  court  instruct  the 
jury  to  return  a  verdict  In  favor  of  a  certain  party.  In  a  few  states  It  may 
be  done  by  demurring  to  the  evidence. 


PART  n. 
WITNESSES. 

COMPETENCY.! 

JF:RE^1IAH  ARNOLD  v.  ESTATE  OF  SAMUEL  ARNOLD. 
13  Vt.  262.    (1841) 

This  was  an  appeal  from  the  decision  of  commissioners,  appointed 
by  the  Probate  Court  to  receive,  examine  and  adjust  all  claims  and 
demands  against  the  estate  of  Samuel  Arnold,  deceased,  of  which 
estate  David  Arnold  and  Nancy  Arnold  were  administrators. 

The  plaintiff  declared  in  an  action  of  book  account  against  said 
estate.  Judgment  to  account  was  rendered  in  the  County  Court  and 
auditors  were  appointed,  who  reported  that  the  parties  appeared  before 
them,  and  the  plaintiff  exhibited  his  account  against  said  estate,  and 
offered  to  prove  the  same  by  his  own  oath;  but,  it  appearing  that 
the  plaintiff  did  not  believe  in  the  existence  of  a  Supreme  Being, 
the  auditors  decided  that  his  testimony  was  inadmissible,  and  he  was 
not  permitted  to  testify.  The  counsel  for  the  plaintiff  then  insisted 
that  the  plaintiff  was  a  competent  witness  to  testify  to  said  account 
under  the  statute  laws  of  this  state,  and  requested  the  auditors  to  ad- 
minister an  oath  or  affirmation  to  the  plaintiff,  agreeably  to  the  second 
section  of  chapter  109  of  the  Revised  Statutes.  But  the  auditors  de- 
cided that  such  oath  or  affirmation  ought  not  to  be  administered. 

The  opinion  of  the  court  was  delivered  by 

Red^iELd,  J.  The  question  which  we  are  now  for  the  first  time 
called  to  decide,  is  one  of  some  little  delicacy,  and  of  very  great  im- 
portance. It  is  one  of  delicacy,  because  those,  who  may  think  them- 
selves affected  by  it,  are  liable  to  feel  aggrieved  by  a  determination 
which  excludes  them  from  giving  testimony,  even  in  their  own  cases, 
and  by  misapprehending,  to  some  extent,  the  grounds  of  the  ex- 
clusion, might  possibly  consider  it  rather  a  matter  of  punishment 
than  misfortune,  and  thus  feel  disposed  to  resist  the  rule  rather  than 
reform  either  their  habits  or  belief.     On  the  other  hand,  some  very 


Hughes  on  Evidence,  p.  265. 

16 


Competency  17 

conscientious  persons  would  feel,  no  doubt,  that  where  the  rule  was 
so  narrowed  down,  as  to  admit  Pagans,  Jews,  Mahometans,  Deists, 
Universalists,  and  especially  members  of  the  Greek  and  Roman  com- 
munions, that  all  religion  was  desecrated  and  trodden  under  foot. 
Under  these  circumstances,  we  feel  solicitous  that  the  reasons  of 
this  decision  should  be  understood,  in  order  that  the  question  here 
decided  may  be  put  at  rest,  until  the  law-making  power  shall  see 
fit  to  change  the  rule,  which,  judging  from  the  past,  is  not  likely 
soon  to  occur. 

It  is  hardly  necessary  here  to  repeat,  for  the  hundredth  time,  the 
very  obvious  remark,  that  in  deciding  questions  upon  these  seats,  we 
have  not  to  inquire  what,  upon  principles  of  expediency  or  propriety, 
the  rule  of  law  should  be,  but  what  is  it? 

Almost  all  sober,  and  especially  religious  men,  have  for  many  years, 
in  ruminating  upon  reforms  in  our  system  of  jurisprudence,  sincerely 
regretted  the  very  unnecessary  frequency  of  oaths ;  and  not  a  few 
men  of  that  same  class  have  even  questioned  the  necessity  of  resorting 
to  the  sanction  of  an  oath,  in  any  department  of  the  civil  administra- 
tion. It  is  doubtless  true,  that  there  exist  very  grave  reasons  in  favor 
of  adopting  even  the  latter  opinion;  but  such  an  important  step 
in  simplifying  the  system  of  municipal  law  and  government,  and  one 
so  untried,  could  hardly  be  taken,  except  upon  the  most  mature  con- 
sideration, and  the  most  thorough  conviction  of  its  necessity. 

In  regard  to  oaths,  I  think  it  will  be  conceded  on  all  hands  that 
some  kind  of  religiolis  belief  has  always  been  considered  indispens- 
able, in  order  to  their  binding  obligation  upon  the  conscience  of 
the  one  sworn.  At  times  it  has  been  deemed  an  essential  pre-requisite 
that  the  person  sworn  should  believe  in  all  the  articles  of  the  Chris- 
tian faith.  Such  were  some  of  the  early  English  decisions.  And 
Mr.  Starkie,  in  the  last  edition  of  his  work  on  evidence,  says,  "All 
persons  may  be  sworn,  who  believe  in  the  existence  of  God,  in  future 
state  of  rewards  and  punishments,  and  in  the  obligation  of  an  oath ;" 
thus  clearly  indicating  that  all  this  is  necessary.  But  as  Lord  Mans- 
field, in  deHvering  the  opinion  of  the  court  in  the  case  of  Atcheson 
V.  Everitt,  Cowper,  389,  well  says, — "Since  the  case  of  Omichund  v. 
Barker,  i  Wilson,  84  (i  Atk.  21.  Willes,  550.)  and  another  case  of 
great  authority  determined  since,  the  nature  of  an  appeal  to  Heaven, 
which  ought  to  he  received  as  a  full  sanction  to  evidence,  has  been 
more  fully  understood."  The  case  of  Omichund  v.  Barker  was  that 
of  the  depositions  of  certain  Gentoos,  sworn  according  to  the  cere- 
monies of  their  religion,  by  stooping  down  and  touching  the  shoes 


i8  Cases  on  Evidence 

of  their  priests.  The  other  case  referred  to  by  the  learned  judge 
above,  was  that  of  a  Turk,  sworn  upon  the  Koran,  Strange,  1104.  A 
Jew,  too,  may  be  sworn  upon  the  Pentateuch,  Vernon,  263,  which 
was  the  case  of  an  answer  in  chancery.  It  is  said  in  the  report  of 
the  case  of  Omichund  v.  Barker,  "that,  at  this  day,  it  seems  to  be 
settled,  that  infidelity  of  any  kind  doth  not  go  to  the  competency  of 
a  witness."  This  must  mean  infidelity,  as  contradistinguished  from 
'Christianity;  for  it  is  well  settled  that  an  atheist  cannot  be  sworn. 

In  support  of  the  proposition  that  an  atheist  cannot  be  sworn,  we 
need  only  refer  to  the  history  of  oaths,  and  the  nature  of  an  oath. 
An  oath  is  well  defined  to  be  "a  solemn  invocation  of  the  vengeance 
of  the  Deity,  if  the  person  sworn  do  not  regard  the  requisitions  of 
the  oath. 

The  earliest  statute,  which  I  have  been  able  to  find  upon  the  sub- 
ject of  blasphemy,  was  passed  February,  1779.  The  phraseology 
of  the  statute,  and  the  extreme  penalty  affixed,  indicate  the  severity 
and  sincerity  of  the  age.  One  now  almost  shudders  to  reflect  how 
short  a  period  of  time  intervenes  between  us  and  them.  That  sec- 
tion is  in  these  words, — "That  if  any  person  shall  blaspheme  the  name 
of  God,  the  Father,  Son,  or  Holy  Glost,  with  direct,  express  presump- 
tion, and  high  handed  blasphemy,  or  shall  curse  in  the  like  manner, 
such  person  shall  be  put  to  death."  The  next  statute  passed  upon 
this  subject  is  much  in  the  same  terms,  except  the  penalty  is  whipping 
and  sitting  in  the  pillory.  This  bears  date  1787.  The  next  statute 
punishing  blasphemy  is  found  in  the  revision  of  1797,  and  is  in  these 
words :  "If  any  person  shall  publicly  deny  the  being  and  existence 
of  a  God,  or  of  the  Supreme  Being,  or  shall  contumeliously  reproach 
his  providence  and  government,  he  shall  be  deemed  a  disturber  of 
the  public  peace  and  tranquility,  and  a  corruptor  of  public  morals  and 
good  manners,"  &c.  The  punishment  was  by  fine  and  security  for 
good  behavior.  This  statute,  so  far  as  regards  the  definition  of  the 
offense  and  the  penalty,  is  literally  re-enacted  in  the  late  revision. 
Hence  it  is  not  true,  as  has  been  sometimes  said,  that  to  require  of 
a  witness  a  belief  in  the  existence  of  a  Supreme  Being,  was  at  vari- 
ance with  the  whole  spirit  and  tenor  of  our  constitution  and  laws. 
I  trust,  indeed,  that  the  recognition  of  the  existence  and  providence 
of  the  Supreme  Being  is  a  principle  deep  laid  in  the  very  founda- 
tion of  our  institutions.  "And  if  there  be,"  in  the  language  of 
Chief  Justice  Willes,  "any  such  infidels,  who  either  do  not  believe 
in  a  God,  or  who  do  not  think  he  will  reward  or  punish  them,  either 
in  this  world  or  the  next,  they  cannot  be  witnesses,  for  this  plain  reason, 


Competency  19 

that  an  oath  cannot  possibly  be  any  tie  or  obligation  upon  them." 

I  shall  not  stop  to  inquire  how  far,  in  this  case,  the  witness  being 
a  party  and  admitted  to  testify  by  statute,  a  different  rule  should 
apply  from  the  ordinary  case  of  witnesses  who  have  no  interest  in  the 
case.  It  is  obvious  that  the  statute  was  only  intended  to  remove  the 
objection  of  interest.  Hence  it  is  plain,  that  a  party  who  is  made  a 
witness  by  statute  is  to  become  such  under  the  same  requisitions  and 
restrictions  as  any  other  witness.  He  must  be  of  sane  mind,  of  sound 
memory,  of  suitable  age,  willing  to  be  sworn,  and  capable  of  taking 
an  oath.  It  would  not  be  pretended,  I  presume,  that  a  person  con- 
victed of  any  infamous  crime  would,  nevertheless,  be  a  competent  wit- 
ness, in  his  own  action  of  account  and  book  account. 

Judgment  affirmed. 


WHEELER  v.  UNITED  STATES. 
139  U.  S.  523.     (1893) 

Brewer,  J.  On  January  2,  1895,  George  L.  Wheeler  was  by  the 
Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Texas 
adjudged  guilty  of  the  crime  of  murder  and  sentenced  to  be  hanged^ 
Whereupon  he  sued  out  this  writ  of  error.  Three  errors  are  alleged 
First,  that  the  indictment  is  fatally  defective  in  failing  to  allege  that 
the  defendant  and  the  deceased  were  not  citizens  of  any  Indian  tribe 
or  nation.  It  charges  that  they  were  not  Indians  nor  citizens  of  the 
Indian  Territory.  The  precise  question  was  presented  in  West- 
moreland v.  United  States,  155  U.  S.  545,  and  under  the  authority 
of  that  case  this  indictment  must  be  held  sufficient. 

Another  contention  is  that  the  court  erred  in  overruling  the  motion 
for  a  new  trial,  but  such  action,  as  has  been  repeatedly  held,  is  not 
assignable  as  error.  Moore  v.  United  States,  150  U.  S.  57;  Holder  v. 
United  States,  150  U.  S.  91 ;  Blitz  v.  United  States,  153  U.  S.  308. 

The  remaining  objection  is  to  the  action  of  the  court  in  permitting 
the  son  of  the  deceased  to  testify.  The  homicide  took  place  on  June 
12,  1894,  and  this  boy  was  five  years  old  on  the  5th  of  July  following. 
The  case  was  tried  on  December  21,  at  which  time  he  was  nearly 
five  and  a  half  years  of  age.     The  boy,  in  reply  to  questions  put  to 


20  Cases  on  Evidence 

him  on  his  voir  dire,  said  among  other  things  that  he  knew  the  dif- 
ference between  the  truth  and  a  lie ;  that  if  he  told  a  lie  the  bad  man 
would  get  him,  and  that  he  was  going  to  tell  the  truth.  When  further 
asked  what  they  would  do  with  him  in  court  if  he  told  a  lie,  he 
replied  that  they  would  put  him  in  jail.  He  also  said  that  his  mother 
had  told  him  that  morning  to  "tell  no  lie,"  and  in  response  to  a  ques- 
tion as  to  what  the  clerk  said  to  him,  when  he  held  up  his  hand,  he 
answered,  "don't  you  tell  no  story,"  Other  questions  were  asked 
as  to  his  residence,  his  relationship  to  the  deceased,  as  to  whether 
he  had  ever  been  to  school,  to  which  latter  inquiry  he  responded  in 
the  negative.  As  the  testimony  is  not  all  preserved  in  the  record 
we  have  before  us  no  inquiry  as  to  the  sufficiency  of  the  testimony 
to  uphold  the  verdict,  and  are  limited  to  the  question  of  the  compe- 
tency of  this  witness. 

That  the  boy  was  not  by  reason  of  his  youth,  as  a  matter  of  law, 
absoluely  disqualified  as  a  witness,  is  clear.  While  no  one  would 
think  of  calling  as  a  witness  an  infant  only  two  or  three  years  old, 
there  is  no  precise  age  which  determines  the  question  of  competency. 
This  depends  on  the  capacity  and  intelligence  of  the  child,  his  appre- 
ciation of  the  difference  between  truth  and  falsehood,  As  well  as  of 
his  duty  to  tell  the  former.  The  decision  of  this  question  rests  pri- 
marily with  the  trial  judge,  who  sees  the  proposed  witness,  notices 
his  manner,  his  apparent  possession  or  lack  of  intelligence,  and  may 
resort  to  any  examination  which  will  tend  to  disclose  his  capacity  and 
intelligence  as  well  as  his  understanding  of  the  obligations  of  an 
oath.  As  many  of  the  matters  cannot  be  photographed  into  the 
record  one  decision  of  the  trial  judge  will  not  be  disturbed  on  review 
unless  from  that  which  is  preserved  it  is  clear  that  it  was  erroneous. 
These  rules  have  been  settled  by  many  decisions,  and  there  seems  to 
be  no  dissent  among  the  recent  authorities.  In  Brasier's  case  (i 
Leach,  Gr.  L.  199,)  it  is  stated  that  the  question  was  submitted  to  the 
twelve  judges,  and  that  they  were  unanimously  of  the  opinion  "that 
an  infant,  though  under  the  age  of  seven  years,  may  be  sworn  in  a 
criminal  prosecution,  provided  such  infant  appears,  on  strict  exam- 
ination by  the  court,  to  possess  a  sufficient  knowledge  of  the  nature 
and  consequences  of  an  oath,  for  there  is  no  precise  or  fixed  rule  as 
to  the  time  within  which  infants  are  excluded  from  giving  evidence; 
but  their  admissibility  depends  upon  the  sense  and  reason  they  enter- 
tain of  the  danger  and  impiety  of  falsehood,  which  is  to  be  collected 
from  their  answers  to  questions  propounded  to  them  by  the  court." 
See  also,  i  Greenleaf's  Evidence,  Paragraph  367;  i  Wharton's  Evi- 


Competency  21 

dence,  Paragraphs  398,  399,  400;  i  Best  on  Evidence,  Paragraphs  155, 
156;  State  V.  Juneau,  88  Wis.  180;  Ridehour  v.  Kansas  City  Cable 
Company,  102  Mo.  270;  McGuff  v.  State,  88  Ala.,  147;  State  v.  Levy, 
2T,  Minn..  104;  Davidson  v.  State,  39  Texas  129;  Commonwealth  v. 
Mullins,  2  Allen,  295;  Peterson  v.  State,  47  Ga.,  523;  State  v.  Ed- 
wards, 79  N.  C.  648 ;  State  v.  Jackson,  9  Ore.,  457 ;  Blackwell  v.  State, 
II  Ind.  196. 

These  principles  and  authorities  are  decisive  in  this  case.  So  far 
as  can  be  judged  from  the  not  very  extended  examination  which  is 
found  in  the  record,  the  boy  was  intelligent,  understood  the  differ- 
ence between  truth  and  falsehood,  and  the  consequences  of  telling  the 
latter,  and  also  what  was  required  by  the  oath  which  he  had  taken. 
At  any  rate,  the  contrary  does  not  appear.  Of  course,  care  must  be 
taken  by  the  trial  judge,  especially  where,  as  in  this  case,  the  question 
is  one  of  life  or  death.  On  the  other  hand,  to  exclude  from  the  wit- 
ness stand  one  who  shows  himself  capable  of  understanding  the 
difference  between  truth  and  falsehood,  and  who  does  not  appear  to 
have  been  simply  taught  to  tell  a  story,  would  sometimes  result  in 
staying  the  hand  of  justice. 

We  think  that  under  the  circumstances  of  this  case  the  disclosures 
on  the  voir  dire  were  sufficient  to  authorize  the  decision  that  the  wit- 
ness was  competent,  and,  therefore,  there  was  no  error  in  admitting 
his  testimony.  These  being  the  only  questions  in  the  record,  the  judg- 
ment must  be 

Affirmed. 


STATE  v.  JOHN  EDWARDS. 
7P  N.  C.  648.     (1878) 

Indictment  for  Murder  tried  at  Spring  Term,  1878,  of  Johnston  Su- 
perior Court,  before  Seymour,  J. 

The  prisoner  was  charged  with  killing  of  Kader  J.  Ballard. 

The  first  witness  for  the  State  was  Ella  Ballard,  a  daughter  of  the 
deceased,  aged  at  the  time  of  the  trial  six  and  a  half  years.  The  pre- 
siding judge  examined  this  witness  on  the-  question  of  .competency  on 
the  second  day  of  the  term  and  being  then  of  opinion  that  she  had  not 
sufficient  religious  instruction,  advised  the  solicitor  not  to  send  her  be- 


22  Cases  on  Evidence 

fore  the  grand  jury.  A  true  bill  was  however  found  upon  the  evidence 
of  another  witness.  Upon  the  trial  which  took  place  a  few  days  after- 
wards, the  judge  examined  her,  and  she  then  gave  the  ordinary  answers 
to  the  ordinary  questions  put  in  such  cases, — such  as  that  God  made  her, 
that  He  would  punish  her  if  -she  told  a  falsehood ;  that  she  was  sworn 
to  tell  the  truth  and  would  be  punished  if  she  did  not  do  so.  She  wai 
further  examined  in  regard  to  general  intelligence,  and  the  Court  was 
of  the  opinion  that  she  was  a  child  of  more  than  usual  intelligence  for 
one  of  her  age,  and  that  she  fully  understood  what  was  said  to  her, 
and  the  nature  of  her  answers.  It  appeared  that  she  had  received  re- 
ligious instruction  from  her  mother  during  the  week  the  court  was  in 
session.  The  prisoner  objected  to  admission  of  her  testimony,  objec- 
tion overruled,  and  the  prisoner  excepted.  The  witness  then  testified, 
that  she  was  six  years  old,  named  Ella,  her  father  was  dead,  John  Ed- 
wards killed  him,  her  father  was  pulling  fodder  in  the  field  when  she 
first  saw  prisoner  getting  over  the  fence,  he  went  where  her  father  was 
and  stopped,  her  father  said  to  him,  "how  are  your  folks  ?"  he  said  her 
father  had  cheated  him,  he  had  a  gun  and  shot  her  father  with  it  (de- 
scribing the  manner  in  which  the  gun  was  held)  and  then  went  off 
through  the  field  to  the  woods.  Witness  pointed  out  the  prisoner  after 
looking  around  the  court  room,  and  said  she  knew  him,  had  seen  him 
often.  One  Joyner  testified  that  she  told  him  the  same  story  on  the 
day  of  the  homicide,  as  the  one  related  by  her  on  the  trial,  and  that 
deceased  was  found  lying  in  said  field  and  that  tracks  led  to  the  v/oods. 
Another  witness  testified  that  she  heard  the  report  of  the  gun.  that 
witness,  Ella,  came  running  to  deceased's  house,  and  upon  being  asked 
what  was  the  matter  said  that  John  Edwards  had  killed  her  father,. 
This  was  also  corroborated  by  another  witness. 

After  the  testimony  was  closed,  the  court  adjourned  for  supper ;  the 
jury  were  kept  together,  but  were  not  instructed  that  they  should  not 
converse  with  any  one  or  among  themselves  about  the  case;  nor  was 
the  court  requested  to  give  such  instruction,  nor  was  it  suggested  that 
any  one  had  communicated  with  the  jury  or  that  they  had  discussed  the 
case;  and  for  failure  to  instruct  as  aforesaid,  the  prisoner  moved  for 
a  new  trial,  which  motion  was  overruled.  There  was  a  verdict  of  guilty. 
Judgment.    Appeal  by  prisoner. 

Reade,  J.  Formerly  the  age  at  which  infants  might  be  examined  as 
witnesses  was  almost  arbitrary.  They  were  not  regularly  admissible 
imder  fourteen,  subject  to  exceptions.  At  one  time  it  was  a  general 
rule  that  none  could  be  admitted  under  nine  years,  very  few  under  ten. 
Gilb.  Ev.  44;  I  Hale  P.  C.  302;  21b  278;  i  Phil.  Ev.     But  of  late 


Competency  23 

years  since  the  means  and  opportunities  for  the  early  cukivation  of  the 
intellect  have  multiplied,  a  more  reasonable  rule  has  been  adopted,  and 
age  is  not  the  test,  but  the  degree  of  understanding  which  the)'  possess, 
including  their  moral  and  religious  culture,  i  Phil.  Ev.,  i  East  P.  C. 
448;  I  Leach  190;  Roscoe  Cr.  Ev.  io6n.  So  formerly,  deaf  and  dumb 
persons  were  classed  with  idiots,  and  were  incapable  of  crime,  and  in- 
competent as  witnesses ;  but  since  the  facilities  for  educating  them,  the 
rule  is  abrogated. 

In  the  case  of  infants  where  there  was  sufficient  capacity  to  under- 
stand the  transaction  and  to  communicate  it,  but  not  sufficient  moral 
and  religious  impression  to  comprehend  the  obligation  of  an  oath,  time 
has  been  allowed  to  make  the  impression  and  to  cultivate  the  conscience. 
I  Leach,  199,  430. 

There  being  now  no  arbitrary  rule  as  to  age,  and  it  being  a  question 
of  capacity,  and  of  moral  and  religious  sensibility  in  any  given  case 
whether  the  witness  is  competent,  it  must  of  necessity  be  left  mainly  if 
not  entirely  to  the  discretion  of  the  presiding  judge.  State  v.  Manuel, 
64  N.  C.  601.  It  may  be  stated  however  that  a  child  of  tender  years 
ought  to  be  admitted  with  great  caution;  and  where  there  is  doubt  it 
ought  to  be  excluded.  The  formal  answers  to  the  usual  questions, — • 
who  made  you?  what  will  become  of  you  if  you  swear  to  a  lie?  and 
the  like  are  so  easily  taught,  that  much  more  ought  to  be  required.  The 
capacity  of  the  child  may  be  ascertained  not  only  by  examining  it,  but 
other  persons  who  have  had  the  care  of  it. 

Although  the  capacity  of  the  child  in  this  case  is  not  for  our  consid- 
eration, yet  it  is  gratifying  to  find  upon  our  examination  of  the  testi- 
mony, that  it  was  sensible  and  clear,  and  that  it  was  corroborated  where 
corrobora;  ion  could  be  expected  by  other  evidence.  We  cannot  say  that 
there  was  error  in  admitting  it. 

Judgment  affirmed. 


REGINA  V.  SAMUEL  HILL. 
5  Cox  C.  C.  259.     (18 51) 

Statement  of  Case:  Coleridge,  J.  This  prisoner  was  tried  before 
me,  assisted  by  my  brother  Cresswell,  at  the  last  February  Sittings  of 
the  Central  Criminal  Court,  for  the  manslaughter  of  Mose  James 
Barnes.    He  was  convicted,  but  a  question  was  reserved  for  the  opinion 


24  Cases  on  Evidence 

of  the  Court  of  Appeal  as  to  the  propriety  of  having  admitted  a  witness 
of  the  name  of  Richard  Donelly  on  the  part  of  the  prosecution. 

The  deceased  and  the  witness  were  both  lunatic  patients  in  Mr.  Arm- 
strong's Asylum,  at  Camberwell,  at  the  time  of  the  supposed  injury,  and 
they  were  at  that  time  placed  in  a  ward  called  the  infirmary.  It  ap- 
peared that  a  single  sane  attendant  (the  prisoner)  had  charge  of  this 
ward,  in  which  as  many  as  nine  patients  slept,  and  that  he  was  assisted 
by  three  of  the  patients,  of  whom  the  witness  Donelly  was  one. 

Lord  Campbell,  C.  J.  I  am  glad  this  case  has  been  reserved,  for  the 
matter  is  of  great  importance,  and  ought  to  be  decided.  However,  after 
a  very  learned  argument,  which  I  have  heard  with  a  great  deal  of 
pleasure,  I  entertain  no  doubt  that  the  rule  is  as  laid  down  by  Parke,  B., 
in  the  unreported  case  that  has  been  referred  to,  that  wherever  a  delu- 
sion of  an  insane  character  exists  in  any  person  who  is  called  as  a  wit- 
ness, it  is  for  the  judge  to  determine  whether  the  person  so  called  has 
a  sufficient  sense  of  religion  in  his  mind,  and  sufficient  understanding 
of  the  nature  of  an  oath,  for  the  jury  to  decide  what  amount  of  credit 
they  will  give  to  his  testimony.  Various  authorities  have  been  referred 
to,  which  lay  down  the  law,  that  a  person  non  compos  mentis  is  not  an 
admissible  witness.  But  in  what  sense  is  the  expression  non  compos 
mentis  employed?  If  a  person  be  so  to  such  an  extent  as  not  to  under- 
stand the  nature  of  an  oath,  he  is  not  admissible.  But  a  person  subject 
to  a  considerable  amount  of  insane  delusion  may  yet  be  under  the  sanc- 
tion of  an  oath,  and  capable  of  giving  very  material  evidence  upon  the 
subject-matter  under  consideration.  The  just  investigation  of  the  truth 
requires  such  a  course  as  has  been  pointed  out  to  be  pursued,  and  in 
the  peculiar  circumstances  of  this  case,  I  should  have  adopted  the  course 
which  was  taken  at  the  trial.  Nothing  could  be  stronger  than  the  lan- 
guage of  the  medical  witnesses  in  this  case,  to  show  that  the  lunatic 
might  be  safely  admitted  as  a  witness.  It  has  been  contended,  that  the 
evidence  of  every  monomaniac  must  be  rejectfed.  But  that  rule  would 
be  found  at  times  very  inconvenient  for  the  innocent  as  well  as  for  the 
guilty.  The  proper  test  must  always  be,  does  the  lunatic  understand 
what  he  is  saying,  and  does  he  understand  the  obligation  of  an  oath? 
The  lunatic  may  be  examined  himself,  that  his  state  of  mind  may  be 
discovered,  and  witnesses  may  be  adduced  to  show  in  what  state  of 
sanity  or  insanity  he  actually  is ;  still,  if  he  can  stand  the  test  proposed, 
the  jury  must  determine  all  the  rest.  In  a  lunatic  asylum,  the  patients. 
are  often  the  only  witnesses  to  outrages  upon  themselves  and  others, 
and  there  would  be  immunity  for  offenses  committed  in  such  places,  if 
the  only  persons  who  can  give  information  were  not  to  be  heard, 


Competency  25 

Anderson,  B.  I  quite  agree  that  it  is  for  the  judge  to  say  whether 
the  person  called  as  a  witness  understands  the  sanction  of  an  oath,  and 
for  the  jury  to  say  whether  they  believe  his  evidence.  Here  the  account 
of  the  lunatic  himself,  and  the  evidence  of  the  medical  witnesses  show 
that  he  was  properly  received  as  a  witness. 

Coleridge,  J.  This  is  an  important  case.  We  have  been  furnished, 
during  the  argument,  with  rules  drawn  from  the  older  authorities 
against  the  admissibility  of  a  lunatic  witness,  which  are  stated  without 
any  qualification.  It  was  not  necessary  for  the  decision  of  those  cases 
that  the  rule  should  be  qualified,  and  in  former  times  the  question  of 
competency  was  considered  upon  much  narrower  grounds  than  it  is  at 
present.  The  evidence  in  this  case  left  the  matter  thus ;  there  was  a , 
disease  upon  the  mind  of  the  witness,  operating  upon  particular  subjects, 
of  which  the  transaction  of  which  he  came  to  speak  was  not  one.  He 
was  perfectly  sane  upon  all  other  things  than  the  particular  subject  of  his 
delusion.  As  far  as  memory  was  concerned,  he  was  in  the  position  of 
ordinary  persons,  and  upon  religious  matters  he  was  remarkably  well 
instructed,  so  as  to  understand  perfectly  the  nature  and  obligation  of 
an  oath.  If  it  had  appeared,  upon  his  evidence,  that  his  impressions  of 
external  objects  were  so  tainted  by  his  delusion  that  they  could  not  be 
acted  upon,  that  would  have  been  a  ground  for  the  jury  to  reject 
or  give  Httle  effect  to  his  evidence.  But  this  was  a  matter  for  them  to 
determine. 

Platt,  B.,  concurred. 

Talfourd,  J.  If  the  proposition,  that  a  person  suffering  under  an 
insane  delusion  cannot  be  a  witness,  were  maintained  to  the  fullest  ex- 
tent, every  man  subject  to  the  most  innocent  unreal  fancy  would  be 
excluded.  Martin  Luther  believed  that  he  had  had  a  personal  conflict 
with  the  devil ;  Dr.  Johnson  was  persuaded  that  he  had  heard  his  mother 
speak  to  him  after  death.  In  every  case  the  judge  must  determine,  ac- 
cording to  the  circumstances  and  extent  of  the  delusion.  Unless  judg- 
ment and  discrimination  be  applied  to  each  particular  case,  there  may 
be  the  most  disastrous  consequences. 

Conviction  affirmed. 


26  Cases  on  Evidence 

HARTFORD  v.  PALMER. 

i6  Johns.  (N.  Y.)  143.     (1819) 

In  ERROR,  on  certiorari  to  a  Justice's  Court. 

In  this  case  a  verdict  and  judgment  were  rendered  for  the  defendant 
below,  on  which  the  plaintiff  below  brought  a  certiorari;  and  the  only 
question  arising  on  the  return  was,  whether  the  justice  ought  to  have 
refused  to  swear  a  witness,  who  was,  when  offered  to  testify,  in  a  state 
of  intoxication. 

Per  Curiam.  We  are  of  opinion,  that  the  justice  decided  correctly 
in  refusing  to  swear  the  witness.  Peake  lays  down  this  general  prop- 
osition, which  cannot  fail  to  command  the  assent  of  all  mankind,  "that 
all  persons  who  are  examined  as  witnesses,  must  be  fully  possessed  of 
their  understanding,  that  is,  such  an  understanding  as  enables  them  to 
retain  in  memory  the  events  of  >vhich  they  have  been  witnesses,  and 
gives  them  a  knowledge  of  right  and  wrong ;  that,  therefore,  idiots  and 
lunatics,  while  under  the  influence  of  their  malady,  not  possessing  this 
share  of  understanding,  are  excluded."  This  principle,  necessarily,  ex- 
cludes persons  from  testifying,  who  are  besotted  with  intoxication,  at 
the  time  they  are  offered  as  witnesses;  for  it  is  a  temporary  derange- 
ment of  the  mind;  and  it  is  impossible  for  such  men  to  have  such  a 
memory  of  events,  of  which  they  may  have  had  a  knowledge,  as  to  be 
able  to  present  them,  fairly  and  faithfully,  to  those  who  are  to  decide 
upon  contested  facts.  A  present  and  existing  intoxication,  to  a  con- 
siderable degree,  utterly  disqualifies  the  person  so  affected,  to  narrate 
facts  and  events  in  a  way  at  all  to  be  relied  on.  It  would,  we  think,  be 
profaning  the  sanctity  of  an  oath,  to  tender  it  to  a  man  who  had  no 
present  sense  of  the  obligations  it  imposed.  Indeed,  it  would  be  a 
scandal  to  the  administration  of  justice,  to  allow,  for  a  moment,  the 
rights  of  individuals  to  be  jeopardized  by  the  testimony  of  any  man  la- 
boring under  the  beastly  sin  of  drunkenness.  The  return  does  not 
state  the  degree  of  intoxication  which  the  justice  considered  sufficient  to 
exclude  the  witness  but  we  are  to  presume,  that  it  was  evident  and  pal- 
pable ;  and  every  court  must  necessarily  have  the  power  to  decide,  from 
their  own  view  of  the  situation  of  the  witness  offered,  whether  he  be 
intoxicated  to  such  a  degree,  as  that  he  ought  not  to  be  heard ;  nor  can 
this  lead  to  any  improper  consequences;  for  if  the  witness  was  not  so 
intoxicated,  the  justice  would  be  responsible  in  an  action  for  a  false  re- 
turn.   We  cannot  withhold  our  approbation  of  the  firmness  which  the 


Competency  ttj 

magistrate  has  evinced  on  this  occasion,  in  refusing  to  administer  an 
oath  to  a  witness  thus  circumstanced. 

Judgment  affirmed. 


STATE  Y.  DE  WOLF. 
8  Conn.  pj.     (1830) 

This  was  an  indictment  against  the  prisoner,  Thaddeus  K.  De  Wolf, 
for  an  attempt  to  commit  a  rape  on  the  body  of  Celestia  Bull,  on  the 
15th  of  June,  1828. 

The  cause  was  tried  at  Litchfield,  February  term,  1830,  before 
^Peters,  J. 

On  the  trial,  Celestia  Bull,  a  person  deaf  and  dumb  from  her  infancy, 
was  sworn  as  a  witness,  and  testified  to  the  principal  facts  in  the  case, 
by  signs,  which  were  interpreted  to  the  court  and  jury,  by  William  W. 
Turner,  a  teacher  in  the  American  Asylum  for  the  education  of  the 
deaf  and  dumb,  who  was  duly  sworn  for  that  purpose,  and  was  also 
sworn  as  a  witness.  Mr.  Turner  testified,  that  Celestia  had  resided  in 
the  Asylum  about- five  years,  and  was  well  acquainted  with  the  language 
of  signs,  and  capable  of  relating  facts  correctly  in  .that  manmer ;  that 
she  could  also  read  and  write,  and  communicate  her  ideas  imperfectly 
by  writing.  The  prisoner  objected  to  her  testifying  in  this  manner,  and 
claimed  that  she  ought  to  give  her  testimony  in  her  own  words  in  writ- 
ing. The  judge  overruled  the  objection,  and  admitted  her  to  testify  in 
the  manner  stated. 

After  the  prisoner  had  cross-examined  Celestia,  and  asked  her  many 
questions  relative  to  the  principal  fact  charged  in  the  indictment  some 
of  which  tended  to  discredit  her  evidence,  but  before  any  attempt  on 
his  part  to  discredit  her  testimony  otherwise  than  by  such  cross-exam- 
ination, the  state's  attorney  offered  Polly  Rowley,  as  a  witness,  to  prove 
that  Celestia  had  previously  told  to  her  the  same  story,  which  she  had 
now  testified  in  court.  To  this  the  prisoner  objected,  but  the  judge  ad- 
mitted her  testimony ;  which  proved  the  fact  for  which  it  was  offered. 

The  jury  having  found  the  prisoner  guilty,  he  moved  for  a  new  trial, 
^f.^  Daggett,  J.  Several  objections  were  made  at  the  trial,  against  testi- 
mony ofiFered  by  the  public  prosecutor,  which  appear  on  the  motion, 
and  are  now  urged  as  reasons  for  granting  a  new  trial.  They  will  be 
considered  in  the  order  presented  by  the  counsel  for  the  prisoner. 


28  Cases  on  Evidence 

I.  The  supposed  victim  of  the  outrage  of  the  prisoner,  was  deaf 
and  dumb.  She  was  sworn,  and  testified  by  a  sworn  interpreter,  an  in- 
;:tructor  in  the  Asylum  for  the  deaf  and  dumb,  through  certain  signs 
adopted  as  a  medium  of  communication,  by  that  class  of  persons.  It 
was  objected,  by  the  prisoner,  that  as  it  appeared  by  the  testimony  of 
the  interpreter,  that  "she  could  read  and  write  and  communicate  her 
ideas  imperfectly  by  writing ;"  and  it  further  appeared  that  "she  under- 
stood the  language  of  signs,  and  was  capable  of  relating  facts  correctly, 
in  that  manner;"  she  ought  to  testify  in  her  own  words  in  writing. 
The  judge  very  properly  overruled  the  objection.  The  bare  statement 
of  the  objection,  overthrows  it.  She  was  capable  of  relating  facts  cor- 
rectly by  signs;  she  could  read  and  write,  and  communicate  her  ideas 
imperfectly,  by  writing.  The  objection  thus  viewed,  presents  this  ab- 
surdity, that  the  court  erred  in  resorting  to  the  most  perfect  mode  of 
ascertaining  the  truth.  The  mode  of  examination  adopted  by  the  court, 
was  the  next  best  mode  to  an  oral  examination,  which  for  many  obvious 
reasons,  is  preferable  to  an  examination  in  writing,  but  which  could  not 
be  had  in  this  case,  on  account  of  an  infirmity  in  the  witness.  I  see  no 
ground  for  this  objection. 

New  trial  granted  on  other  grounds. 


WILSON  V.  SHEPPARD. 
28  Ala.  623.     (1836) 


This  action  was  brought  in  August,  1853,  by  Mrs.  Harriet  E.  Wilson, 
the  appellant,  who  is  the  wife  of  Samuel  W.  Wilson,  to  recover  dam- 
ages for  the  defendant's  conversion  of  several  buggies  and  other  articles 
of  personal  property,  which  the  plaintiff  claimed  as  part  of  her  separate 
estate. 

Walker,  J.  The  incompetency  of  husband  and  wife  to  testify  for  or 
against  each  other,  unless  in  a  few  excepted  instances,  has  its  founda- 
tion not  merely  in  the  identity  of  their  legal  rights,  but  in  a  wise  public 
policy.  No  abandonment,  or  intention  to  abandon  that  policy,  is  indi- 
cated by  the  statutes  securing  to  married  women  their  property  sepa- 
rately from  their  husbands.  There  is  nothing  in  those  statutes  from 
which  we  can  infer  a  legislative  purpose  to  mar  the  sacred  confidence  of 
married  life,  and  to  open  the  door  for  broils  and  dissension,  by  permit- 
ting husband  and  wife  to  testify  for  or  against  each  other.     That  the 


Competency  29 

rule  which  renders  the  husband  and  wife  incompetent  witnesses  for  or 
against  each  other  is  aboHshed,  cannot  result  from  the  severing  of  their 
pecuniary  interests  to  a  certain  extent,  because  the  rule  was  not  founded 
upon  the  identity  of  those  interests. 

In  some  cases,  an  agent  is  a  competent  witness,  notwithstanding  his 
interest  in  the  event  of  the  suit,  from  the  necessity  of  the  case — Bean  v. 
Pearsall,  12  Ala.  592.  But  this  exception  to  the  general  rule  "should 
never  be  allowed  in  a  cause  which  involves  the  fraud,  negligence  or 
tortious  act  of  the  agent."  Griggs  v.  Woodruff,  14  Ala.  13.  In  this 
case  the  question  whether  the  husband  has  made  a  fraudulent  transfer 
to  his  wife,  is  involved ;  and  therefore,  conceding  that  there  is  an 
analogy  between  the  objection  to  competency  for  interest,  and  for  the 
marriage  relation  existing  between  the  witness  and  the  party,  the  hus- 
band would  not  be  a  competent  witness  in  this  case.  We  prefer,  how- 
ever, to  place  our  decision  upon  the  ground  that  the  husband  and  wife 
are  incompetent  to  testify  for  or  against  each  other  upon  principles  of 
public  policy;  and  that  incompetency  applies,  where  the  husband  is 
called  upon  to  testify  as  to  his  acts  in  the  capacity  of  trustee  for  his 
wife.  The  law  has  never  made  any  exception  to  the  general  incompe- 
tency of  the  husband  to  testify  for  the  wife,  because  the  subject  of  the 
testiijiony  was  his  acts  as  trustee ;  and  we  do  not  think  there  is  anything 
in  our  laws  which  demands  the  creation  of  a  new  rule.  We  decide,  in 
this  case,  that  the  husband  was  incompetent  to  testify  as  a  witness. 


THE  PEOPLE  V.  HENRY  G.  GREEN. 

I  Denio  (N.  Y.)  614.     (1845) 

The  prisoner  was  tried  at  the  Rensselaer  oyer  and  terminer,  in  July, 
1845,  before  Parker,  C,  Judge,  and  others,  for  the  murder  of  his  wife 
by  poisoning  with  arsenic.  On  the  trial  the  district  attorney,  after  lay- 
ing a  proper  foundation,  offered  to  give  in  evidence  the  dying  declara- 
tions of  the  deceased  as  to  the  cause  of  death.  The  counsel  for  the 
prisoner  objected,  that  the  dying  declarations  could  not  be  received 
where  they  came  from  the  wife  against  the  husband;  but  the  court  over*- 
ruled  the  objection,  and  admitted  the  evidence.  The  prisoner  having 
been  convicted,  the  case  was  reported  to  the  governor,  who  on  thfe  sec- 
ond day  of  September,  during  the  last  ^  acation,  consulted  his  legal  ad- 
visers in  such  cases.    (See  2  R.  S.  658,  Paragraphs  13,  14.)    The  Chan- 


30  Cases  on  Evidence 

cellor.  the  Chief  Justice,  and  Mr.  Justice  Beardsley  (Jewett,  J.,  being 
absent,),  were  of  opinion  that  the  evidence  was  properly  admitted;  that 
the  dying  declarations  of  the  wife  may  be  received  against  the  husband, 
on  the  same  principle  that  she  is  allowed  to  testify  against  him  where 
the  complaint  is  violence  against  her  person. 

Mr.  Justice  Jewett,  being  afterwards  consulted  by  his  brethren,  de- 
clared himself  of  the  same  opinion. 


YOUNG,  Admr.  v.  OILMAN. 
46  N.  H.  84.     (1866) 

This  action  was  commenced  by  Augustus  Burpee  as  administrator  of 
Joshua  F.  Burpee,  deceased.  Augustus  Burpee  resigned  his  trust  as 
administrator,  and  Young  was  appointed  as  administrator  of  the  estate 
of  said  Joshua  F.  in  March,  1866.  and,  at  the  commencement  of  the 
present  term,  notice  was  given  upon  the  docket  of  the  resignation  of 
said  Burpee,  and  said  Young  appeared  as  administrator  as  the  plaintiff 
of  record.  Upon  the  trial,  Augustus  Burpee  testified  that  the -only 
object  of  the  change  of  administrators  was  to  enable  him  and  his  wife 
to  testify  in  the  cause  and  to  exclude  the  defendant. 

It  did  not  appear  that  there  were  any  claims  against  said  estate,  and 
it  appeared  that  said  Augustus  Burpee  and  a  sister  of  his  who  also  tes- 
tified without  objection,  were  uncle  and  aunt  to  the  deceased  and  heirs 
to  his  estate.  It  also  appeared  that  said  Burpee  had  furnished  the  means 
for  carrying  on  this  suit  both  before  and  after  the  appointment  of 
Young,  the  estate  having  no  assets  except  the  claim  in  suit  against  this 
defendant.  Said  Burpee  sat  within  the  bar  with  the  plaintiff's  counsel  a 
portion  of  the  time  during  the  trial. 

After  these  facts  had  appeared  the  plaintiff  offered  the  wife  of  the 
said  Augustus  Burpee  as  a  witness  to  whom  the  defendant  objected,  but 
the  court  admitted  her  to  testify  and  defendant  excepted. 

Bellows,  J.  The  suit  was  in  favor  of  an  administrator  of  an  estate 
in  which  the  husband  of  the  witness  was  interested  as  heir,  it  appearing 
also  that  there  were  no  creditors.  In  case  of  a  recovery,  then,  the  hus- 
band would  be  entitled  to  a  portion  of  the  fruits  of  the  judgment ;  he 
was,  therefore,  directly  interested,  for  by  that  judgment  he  would  be 
concluded. 

Waiving,  then,  the  question  whether  he  should  be  regarded  as  a  party. 


Competency  31 

one  inquiry  is  whether  the  wife  is  a  competent  w^itness  for  or  against  the 
husband,  where  his  interest  is  directly  involved  in  the  suit,  and  would 
be  concluded  by  the  judgment,  but  where  he  is  not  a  party. 

It  must  now  be  considered  as  well  settled  in  New  Hampshire,  that 
the  exclusion  of  the  husband  and  wife  as  witnesses  for  or  against  each 
other,  is  founded  as  well  upon  reasons  of  public  policy  to  preserve  the 
sacredness  of  the  marriage  relation,  as  upon  the  identity  of  interests; 
and  therefore  that  the  removal  by  statute  of  the  disqualification  arising 
from  interest,  does  not  render  competent  the  husband  and  wife.  Kelly 
v.  Proctor,  41  N.  H.  139;  Breed  v.  Gove,  41  N.  H.  452;  Smity  v.  Bos- 
ton &  Maine  Railroad,  44  N.  H.  325. 

In  all  these  cases,  the  husband  was  party  to  the  suit.  In  Breed  v. 
Gove,  the  wife  living  apart  from  the  husband,  was  offered  as  a  witness 
against  him,  to  prove  the  delivery  of  necessaries  to  her  while  so  living 
apart.  In  the  others  she  was  offered  as  a  witness  in  his  favor.  In 
Smith  v.  The  Boston  &  Maine  Railroad,  the  suit  was  by  the  husband 
and  wife  for  the  loss  of  goods  of  the  wife's  before  the  marriage,  and 
she  was  called  to  prove  the  loss.  In  all  the  cases  she  was  held  to  be 
incompetent. 

It  is  clear,  therefore,  that  where  the  husband  or  wife  is  party  to  the 
suit,  the  other  is  not  a  competent  witness,  on  grounds  of  public  policy. 
Is  the  principle  any  the  less  applicable  where  the  husband  is  not  strictly 
a  party  to  the  suit,  although  his  interest  will  be  determined  by  it  ? 

Mr.  Greenleaf,  in  his  work  on  Evidence,  sec.  335,  lays  it  down  that 
the  principle  of  the  rule  requires  its  application  to  all  cases  in  which  the 
interests  of  the  other  party  are  involved,  and  would  be  concluded  by  any 
verdict  therein,  though  the  husband  or  wife  be  not  a  party. 

The  same  doctrine  is  laid  down  by  Mr.  Starkie  in  his  work  on  Evi- 
dence, part  4,  p.  708,  and  cases  cited,  although  it  is  said  that  the  in- 
terest must  be  vested  and  certain;  but  it  is  held  that  if  the  husband 
would  be  disqualified  by  reason  of  interest,  the  wife  would  be  also ; 
citing  Tiley  v.  Cowling,  i  Ld.  Raym.  744,  which  is  in  point. 

So  in  I  Phillips  Evi.  64 ;  and  the  same  principle  is  recognized  in  Leg- 
gett  &  al.  V.  Boyd,  3  Wend.  376,  where  it  was  decided  that  the  wife 
of  the  special  bail  was  an  incompetent  witness  for  the  defendant  in  the 
original  suit. 

These  principles  so  laid  down  in  the  elementary  books  are  well  sus- 
tained by  the  authorities ;  and  it  is  equally  clear  that  they  are  not  based 
upon  the  identity  of  interest  alone,  but  upon  reasons  of  public  policy  as 
well.  In  addition  to  the  cases  cited  from  our  own  reports  to  this  point, 
are  the  authorities  which  show  that  the  competency  of  the  wife  is  not 


32  Cases  on  Evidence 

restored  by  the  termination  of  her  interest ;  as,  for  instance  the  termina- 
tion of  the  marriage  relation  by  death  of  the  husband,  or  by  divorce, 
leaving  the  wife  no  interest  in  the  estate,  i  Greenl.  Evi.  sec.  337,  where 
it  is  said  that  the  great  object  of  the  rule  is  to  secure  domestic  happiness 
by  placing  the  protecting  seal  of  the  law  upon  all  confidential  commu- 
nications between  husband  and  wife. 

In  Steing  v.  Bowman,  13  Peters,  U.  S.  Rep.  209,  it  was  held  that  a 
wife,  after  her  husband's  death,  could  not  be  allowed  to  prove  that  her 
husband  had  confessed  to  her  that  he  had  committed  perjury  in  a  dep- 
osition read  in  the  cause,  although  the  husband  was  not  a  party  or 
interested  in  the  cause.  A  similar  doctrine  was  applied  where  the  wife 
had  been  divorced  by  act  of  Parliament.  Monroe  v.  Twisleton,  Evi.  All. 
87;  recognized  in  Aveson  v.  Ld.  Kinniard,  6  East.  192,  193.  So,  in 
Doker  v.  Hasler,  Ryan  &  Moody  198,  it  was  held  that  a  widow  cannot  be 
asked  to  disclose  conversations  between  her  and  her  husband  because  of 
the  violation  of  conjugal  confidence.  So  in  Starkie's  Evi.  part  4,  p.  711, 
and  cases  cited.  In  O'Connor  v.  Marjoribanks,  4  M.  &  G.  435,  it  was 
held,  that,  in  trover  by  the  personal  representatives  of  the  deceased,  his 
widow  is  not  admissible  to  prove  that  she  pledged  the  goods  sued  for 
to  the  defendant  with  her  husband's  authority ;  and  this  is  put  upon  the 
ground  of  public  policy,  and  it  fully  recognizes  the  doctrine  of  Monroe 
v.  Twisleton,  and  the  court  holds  that  the  disqualification  is  general,  and 
not  limited  to  confidential  communications.  See,  also,  2  Kent's  Com. 
179,  and  notes  and  cases  cited.  So  it  is  held,  that,  in  a  suit  by  the 
trustees  touching  her  separate  property,  the  husband  could  not  be  a 
witness  for  the  trustees,  although  he  had  no  interest  in  the  subject. 
Burrel  v.  Bell,  2  Sandf,  Ch.  Rep.  15;  Hasbrouck  v.  Vandervoost,  4 
Sandf.  596,  and  5  Seld.  153. 

In  N.  H.,  it  has  been  held,  that,  after  the  husband's  death,  if  the  wife 
have  no  interest  in  the  suit,  and  the  facts  to  which  she  is  called  to  tes- 
tify, did  not  come  to  her  through  any  confidential  communications  of 
the  husband,  she  may  be  a  witness.  Jackson  &  al.  v.  Barron,  37  N.  H. 
494.  So  in  Pike  v.  Hayes,  14  N.  H.  22,  it  is  suggested  by  Gilchrist, 
J.,  that  there  is  no  reason  why  the  wife,  after  the  death  of  her  hus- 
band, should  not  state  facts  which  came  to  her  knowledge  from  other 
sources,  and  not  by  reason  of  her  situation  as  wife. 

From  those  cases,  it  is  fairly  to  be  implied,  even  after  the  marriage 
relation  is  terminated,  that  the  wife  cannot  disclose  information  which 
as  a  wife  she  had  obtained  during  the  marriage. 

This  review  of  the  authorities  shows  that  at  common  law  the  dis- 
ability of  the  husband  and  wife  to  testify  against  each  other  still  re- 


Competency  33 

mains,  although  the  disquahfication  arising  from  interest  be  removed, 
as  by  a  divorce,  or  by  death;  and  it,  therefore,  would  seem  to  follow 
logically  that  the  removal  of  this  disqualification  by  statute,  as  has  been 
done  here,  would  not  make  them  competent  witnesses. 

Upon  these  views,  we  think  the  wife  was  not  a  competent  witness,  and 
there  must  be 

A  new  trial. 


COMMONWEALTH  v.  SAPP. 
po  Ky.  580.     (1890) 

Chief  Justice  Holt,  Upon  the  trial  of  William  Sapp  upon  the 
charge  of  attempting  to  poison  his  wife,  the  state  offered  her  as  a  witness 
against  him,  avowing  by  its  attorney  that  it  would  prove  by  her  she  had 
seen  the  accused  sprinkle  a  substance  upon  a  piece  of  watermelon  in- 
tended for  her,  and  that  the  portion  of  it  produced  at  the  examining 
trial,  and  then  shown  to  contain  arsenic,  was  part  of  the  piece  prepared 
for  her,  and  was  when  so  produced,  in  the  same  condition  as  when  she 
got  it  from  him.  It  is  claimed  the  attempt  was  made  in  August,  1888. 
Afterward,  and  before  his  trial,  they  were  absolutely  divorced.  The 
court  refused  to  permit  her  to  testify,  holding  that  she  could  not  be  a 
witness  for  any  purpose;  and  whether  this  is  so  is  the  main  question 
now  presented. 

It  is  a  general  rule  of  the  common  law,  based  both  upon  public  policy 
and  because  of  identity  of  interest,  that  neither  a  husband  or  wife  can 
testify  for  or  against  the  other;  and  some  authorities  hold  that  where 
this  relation  has  once  existed,  the  one  is  inadmissible  for  or  against  the 
other,  even  after  the  relation  has  ceased,  as  to  any  and  all  matters  that 
occurred  during  its  existence. 

If  the  proposed  testimony  violates  marital  confidence  in  the  slightest 
degree,  or  tends,  however  slightly,  to  impair  the  rule  for  its  protection, 
the  highest  considerations  forbid  its  introduction.  The  word  "commu- 
nication," therefore,  as  used  in  our  statute,  should  be  given  a  liberal 
construction.  It  should  not  be  confined  to  a  mere  statement  by  the 
husband  to  the  wife  or  vice  versa,  but  should  be  construed  to  embrace 
all  knowledge  upon  the  part  of  the  one  or  other  obtained  by  reason  of 
the  marriage  relation,  and  which,  but  for  the  confidence  growing  out  of 
it,  would  not  have  been  known  to  the  party.     The  reason  of  this  rule 


34  Cases  on  Evidence 

does  not  apply,  however,  to  facts  known  to  a  surviving  or  divorced 
husband  or  wife,  independent  of  the  existence  of  the  former  marriage, 
although  the  knowledge  was  derived  during  its  existence,  and  relates  to 
the  transactions  of  the  one  or  the  other ;  therefore,  the  rule  should  not 
be  applied  in  such  a  case.  What  the  State  proposed  to  prove  by  the 
divorced  wife  in  this  case  was  not  any  communication  or  knowledge 
which  can  fairly  be  considered  as  having  come  to  her  by  reason  of  her 
being  then  the  wife  of  the  accused.  If  she  had  not  been  then  his  wife, 
ordinary  observation  would  have  enabled  her  to  know  all  that  it  was 
proposed  to  prove  by  her.  But  we  think  it  was  competent  upon  another 
ground.  It  was  evidence  relating  to  an  alleged  attempt  at  felony  upon 
the  wife.  The  rule  that  husband  and  wife  cannot  testify  for  or  against 
each  other  is  subject  necessarily  to  some  exceptions,  one  of  which  is, 
where  the  husband  commits  or  attempts  to  commit  a  crime  against  the 
person  of  the  wife.  (Stein  v.  Bowman,  &c.,  13  Peters,  221.)  It  was 
never  doubted  but  what  she  could  exhibit  articles  of  the  peace  against 
him.  Roscoe  says :  "It  is  quite  clear  that  a  wife  is  a  competent  witness 
against  her  husband  in  respect  of  any  charge  which  affects  her  liberty 
or  person."     (Roscoe's  Criminal  Evidence,  page  150.) 

In  an  English  case,  where  the  husband  attempted  to  poison  the  wife 
with  a  cake  into  which  arsenic  had  been  introduced,  and  the  wife  was 
admitted  to  prove  that  her  husband  gave  her  the  cake,  it  was  held  by  the 
twelve  judges  that  the  evidence  was  rightly  admitted.  (Rex  v.  Jagger, 
Russ.  Crimes,  632.) 

The  policy  upon  which  the  rule  that  the  husband  and  wife  cannot 
testify  for  or  against  each  other  is  based  is  so  far  overcome  as  to  create 
the  exception  by  that  superior  policy  which  dictates  the  punishment  of 
crime,  and  which,  without  the  exception  to  the  rule,  would  very  likely 
go  unpunished.  It  is  of  necessity.  If  it  be  said  that  our  statute  forbids 
the  introduction  of  the  husband  or  wife  as  a  witness  against  the  other, 
we  reply,  and  so  did  the  common  law ;  and  yet  the  exception  named  ex- 
isted, and  so  it  should,  in  our  opinion,  under  our  statute.  The  necessity 
of  the  case  requires  such  a  construction,  and,  as  already  said,  the  statute 
forbidding  husband  or  wife  to  testify  against  each  other  is  but  de- 
claratory of  the  common  law. 

This  opinion  is  ordered  to  be  certified  to  the  lower  court  as  the  law 
of  the  case. 


Competency  35 

USMAN,  Admr.  v.  EARLY  et  al. 
J2  Calif.  282.     (1859) 

This  was  a  bill  to  foreclose  a  mortgage  upon  a  mining  claim  given  to 
secure  the  payment  of  a  promissory  note.  The  action  was  on  the  note 
and  mortgage. 

The  note  and  mortgage  were  given  to  one  Michael  Lisman,  who  since 
died,  and  the  suit  was  brought  by  his  administrator.  On  the  trial,  the 
plaintiff  introduced  as  a  witness  one  Hertch,  who  testified  on  his  voir 
dire,  that  his  wife  was  a  sister  and  one  of  the  heirs  of  the  deceased. 
Defendants  objected  to  this  witness  on  the  ground  of  interest.  The 
court  overruled  the  objection,  and  the  witness  was  allowed  to  testify. 
The  cause  was  tried  by  a  jury,  who  returned  a  verdict  for  the  plaintiff, 
and  judgment  was  entered  thereon.    Defendants  appealed  to  this  court. 

Terry,  C.  J.,  delivered  the  opinion  of  the  court;  Baldwin,  J.,  con- 
curring. 

There  is  no  doubt  that  the  witness,  Hertch,  was  incompetent  on  the 
ground  of  interest,  and  his  testimony  was  improperly  admitted. 

It  is  urged  by  respondent,  that  this  being  an  equity  case,  the  court 
will  not  reverse  because  of  the  admission  of  improper  evidence,  but 
will  proceed  to  examine  and  decide  the  case  upon  the  legal  evidence  in 
the  record.  This  is  the  ordinary  and  proper  course  in  such  cases,  when 
the  evidence  in  the  record,  excluding  that  improperly  admitted  is  satis- 
factory, which  is  not  the  case  here,  as  it  is  by  no  means  clear  that  the 
judgment  can  be  sustained  by  the  record  without  the  evidence  of  Hertch. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 


SCHREFFLER  v.  CHASE. 
245  III.  S95.     (1910) 


Mr.  Justice  Cook  deHvered  the  opinion  of  the  court : 
Etta  Schrefifler  and  Ulysses  Schreffler,  her  husband,  the  appellees, 
filed  their  bill  of  complaint  in  the  Circuit  Court  of  Kankakee  county  to 
contest  the  validity  of  the  will  of  Rosella  C.  Paine,  deceased,  on  the 
ground  of  mental  incapacity.  An  issue  at  law  was  made  up  whether  the 
writing  produced  was  the  will  of  the  deceased  or  not.  The  first  jury 
to  whom  this  issue  was  submitted  failed  to  agree  and  the  issue  was  sub- 


36  Cases  on  Evidhnce 

mitted  to  another  jury,  resulting  in  a  verdict  finding  that  the  writing 
produced  was  not  the  will  of  Rosella  C.  Paine,  and  that  she  was  not  of 
sound  mind  and  memory  at  the  time  of  executing  said  writing.  The 
court  overruled  appellants'  motion  for  a  new  trial  and  entered  a  decree 
setting  aside  the  probate  of  the  will  and  declaring  the  purported  will 
null  and  void.  The  defendants  to  the  bill  have  prosecuted  an  appeal  to 
this  court. 

The  evidence  oflFered  by  appellants,  if  considered  alone  would  estab- 
lish beyond  question  the  validity  of  the  will  and  the  mental  capacity  of 
the  testatrix. 

Appellees  called  as  a  witness  in  their  behalf  Dickinson,  the  divorced 
husband  of  the  testatrix,  who,  over  the  objection  of  appellants  to  his 
competency,  was  permitted  to  testify  as  to  the  conduct  of  his  wife  as 
observed  by  him  from  the  time  of  his  marriage  to  her  up  to  the  time 
of  the  separation. 

It  is  obvious  that  the  testimony  of  this  witness  must  have  been  a 
material  factor  in  the  finding  of  the  jury  that  the  testatrix  was  not  of 
sound  mind  and  memory  at  the  time  of  executing  the  will,  and  if  such 
testimony  was  improperly  admitted  the  decree  based  on  such  verdict 
cannot  be  permitted  to  stand.  At  common  law  a  husband  could  not  be 
a  witness  for  or  against  his  wife  as  to  any  matter,  nor  could  he,  either 
during  the  marriage  or  after  its  termination  by  death  or  divorce,  be 
called  as  a  witness  to  testify  to  communications  between  them,  or  to 
any  fact  or  transaction  the  knowledge  of  which  was  obtained  by  means 
of  the  marriage  relation. 

In  GriflFeth  v.  Griff eth,  162  111.  368,  a  bill  was  filed  by  the  wife  for  a 
divorce  on  the  ground  of  the  impotency  of  the  husband.  In  holding  that 
the  evidence  of  the  divorced  wife  was  incompetent  we  said :  "Whether 
the  divorced  wife's  knowledge  of  her  husband's  conduct  in  the  respect 
here  referred  to  came  to  her  as  the  result  of  his  admissions  to  her  or  of 
her  conversations  with  him,  or  as  the  result  merely  of  her  own  observa- 
tion, it  was  acquired  in  the  confidence  of  the  marriage  relation,  and 
therefore,  her  evidence  in  regard  to  it  should  have  been  excluded  upon 
principles  of  public  policy.  The  protecting  seal  of  the  law  is  placed 
upon  all  confidential  communications  between  the  husband  and  the  wife, 
except  so  far  as  our  statute  has  changed  the  rule.  It  makes  no  dif- 
ference that  the  marriage  relation  no  longer  exists  between  them. 
'Whatever  has  come  to  the  knowledge  of  either  by  means  of  the  hal- 
lowed confidence  which  that  relation  inspires  cannot  be  afterwards  di- 
vulged in  testimony,  even  though  the  other  party  be  no  longer  living.' 
(i  Greenleaf  on  Evidence,  sec.  337.)    Accordingly  in  Grose  v.  Rutlcdge, 


Competency  37 

81  111.  266,  we  said  (p.  268) :  'The  defense  offered  the  divorced  wife 
of  the  plaintiff  as  a  witness  to  prove  a  fact  which  must  have  come  to 
her  knowledge,  from  the  very  nature  of  the  fact,  during  the  existence 
of  the  marital  relation.  This  testimony  was  properly  excluded.  Wad- 
dams  V.  Humphrey,  22  111.  661.'" 

Dickinson  necessarily  obtained  his  knowledge  of  the  facts  about  which 
he  testified  by  reason  of  the  marriage  relation  which  existed  between 
him  and  the  testatrix,  and  he  cannot  be  permitted  to  divulge  these  facts 
as  evidence  of  the  insanity  or  mental  incapacity  of  his  former  wife. 

The  decree  is  reversed  and  the  cause  will  be  remanded  to  the  Circuit 
Court  for  a  new  trial  upon  the  issue  at  law  whether  the  writing  pro- 
duced be  the  will  of  the  testatrix  or  not. 

Reversed  and  remanded. 


CAMPBELL  et  al.  v.  CAMPBELL  et  al. 
130  III.  466.     (1889) 

Mr.  Chief  Justice  Shope  delivered  the  opinion  of  the  court : 

This  was  a  bill  in  chancery,  by  Ruth  Campbell  and  others,  heirs-at-law 
of  Joshua  Neely,  deceased,  to  set  aside  his  will,  upon  two  grounds, — 
want  of  testamentary  capacity  of  the  deceased,  and  that  undue  influence 
had  been  practiced  by  Charles  W.  Enos  and  others,  to  induce  the  testator 
to  execute  the  supposed  will. 

It  is  next  assigned  for  error,  that  the  court  refused  to  allow  con- 
testants to  examine,  as  witnesses,  Rachel  C.  Williamson,  Mary  Sweeney 
and  Genevieve  Smith,  who  were  all  defendants  to  the  bill,  and  had  suf- 
fered the  same  to  be  taken  as  confessed  as  to  them.  It  is  said  they 
were  nieces  of  the  testator  and  sisters  of  some  of  the  complainants. 

In  Stewart  Rapalje  on  Law  of  Witnesses,  (page  293,  sec.  171)  it  is 
said :  'Tt  is  a  well  settled  rule  that  the  competency  of  one  offered  as  a 
witness  to  testify  in  the  case  will  be  presumed,  and  the  party  objectii^ 
to  his  competency  must  state  the  grounds  of  his  objections."  And  on 
page  299,  (sec.  177)  it  is  said:  "The  presumption  being  in  favor  of 
competency,  the  burden  is  upon  the  objector  to  prove  that  one  offered 
as  a  witness  is  incompetent  to  testify,  by  reason  of  interest  or  otherwise. 
Thus  to  exclude  a  witness  on  the  ground  that  his  testimony,  if  admitted, 
will  tend  to  protect  him  from  claims  against  him,  it  must  first  be  shown 
that  there  is  at  least  a  prima  facie  case  of  liability  against  him,  and  that 


38  Cases  on  Evidence 

he  is  exposed  to  certain  danger  from  such  claims.  The  objector  must 
point  out  to  the  court  the  ground  of  incompetency.  The  witness  will 
not  be  excluded  on  the  ground  of  interest  if  the  question  of  his  interest 
is  in  doubt."  In  section  174  of  the  same  work  it  is  said :  "Objection  to 
the  competency  of  a  witness  having  been  made,  the  question  of  com- 
petency must  be  decided,  no  matter  how  difficult  it  may  be  to  determine 
as  to  his  interest  or  want  of  interest.  To  reject  him  in  such  a  case, 
without  deciding  the  question,  is  error,  and  to  admit  him  is  equally 
erroneous." 

The  law  affords  two  modes  of  determining  the  interest  of  a  witness 
in  the  result  of  a  suit :  First,  by  examining  him  on  his  voir  dire;  and 
second,  by  extrinsic  evidence.  The  true  test  of  the  competency  of  these 
three  witnesses  is  to  be  determined  by  ascertaining  whether  they  would 
gain  or  lose  by  a  decree  setting  aside  the  will.  Being  defendants,  they 
were  prima  facie  competent  to  testify  on  behalf  of  the  contestants,  and 
before  excluding  them,  the  court  should  have  ascertained  their  real 
interest.  It  devolved  upon  the  party  objecting  to  show  the  court  that 
their  interest  was  with  the  party  offering  them  as  witnesses,  if  that  fad- 
did  not  otherwise  appear.  If  they  would  not  gain  by  having  the  will 
set  aside,  they  were  competent,  otherwise  they  were  not.  The  will, 
which  was  before  the  court,  showed  that  they  were  devisees  thereunder, 
and  without  further  evidence  on  the  subject,  their  evidence  at  least 
would  appear  to  be  adverse  to  the  contestants  and  in  favor  of  the  pro- 
ponents of  the  will.  The  fact,  if  conceded,  that  they  were  heirs-at-law 
of  the  testator,  would  not,  of  itself,  establish  their  incompetency,  or 
show  that  they  would  take  a  greater  share  as  heirs  than  as  devisees. 

We  think  there  was  error  in  holding  these  witnesses  incompetent  to 
testify,  without  proof  that  their  interest  was  with  the  contestants.  In 
other  words,  the  court  should  have  ascertained  their  interest,  and  if 
they  were  called  to  testify  against  such  interest,  they  should  have  been 
permitted  to  testify. 

Decree  reversed. 


Competency  39 

THE  STATE  v.  CLARK. 
60  Kan.  450.    (i8pp) 

Johnston,  J.  E.  C.  Clark  was  charged  with  counseling,  aiding  and 
abetting  in  the  murder  of  W.  C.  Boyd,  and  was  found  guilty  of  man- 
slaughter in  the  second  degree.  The  sentence  imposed  was  imprison- 
ment at  hard  labor  for  a  term  of  five  years,  and  the  defendant  appeals, 
alleging  that  several  rulings  of  the  court  were  erroneous  and  prejudicial. 

It  is  strongly  urged  that  error  was  committed  in  the  admission  of  tes- 
timony of  Harry  Postlewaite.  When  he  was  offered  as  a  witness  in 
behalf  of  the  state,  an  objection  to  his  competency  was  made,  and  the 
preliminary  inquiry  disclosed  that  about  two  years  before  that  time  he 
had  been  convicted  of  grand  larceny  in  Sedgwick  county,  and  being  then 
only  about  seventeen  years  of  age  he  was  sentenced  to  be  taken  to  the 
state  industrial  reformatory  and  there  confined  until  the  managers  or 
trustees  thereof  should  declare  that  he  was  fully  reformed.  It  was  not 
shown  that  a  pardon  had  been  granted  nor  that  the  sentence  had  in  any 
way  been  abrogated.  No  claim  of  that  kind  was  made,  but  on  the  other 
hand  the  contention  is  that  the  conviction  and  sentence  did  not  affect  his 
civil  rights,  and  that  therefore  no  pardon  was  necessary.  If  the  con- 
viction and  sentence  rendered  Postlewaite  incompetent  to  testify,  it 
would  seem  that  a  prima  facie  showing  of  incompetency  was  made  when 
proof  of  the  conviction  and  sentence  was  offered.  While  all  witnesses 
tendered  in  court  are  presumed  to  be  competent  and  credible,  proof  of 
a  conviction  and  sentence  for  an  infamous  crime  creates  a  presumption 
of  incompetency,  and  it  then  devolves  on  the  party  offering  the  witness 
to  overcome  the  presumption  by  showing  that  the  conviction  and  sen- 
tence are  without  force.  The  question  remains,  however,  whether  a 
person  between  sixteen  and  twenty-five  years  of  age  who  has  been  con- 
victed of  grand  larceny  and  is  adjudged  to  be  taken  to  and  confined  at 
the  reformatory  loses  his  civil  rights  and  is  incompetent  to  testify. 

At  common  law  a  person  found  and  adjudged  guilty  of  an  infamous 
crime  is  deemed  incompetent  to  testify  as  a  witness  in  any  court  of  jus- 
tice unless  the  judgment  of  conviction  has  been  reversed  or  a  pardon 
granted.  Our  statute  has  modified  the  common  law  to  the  extent  that 
in  civil  cases  the  conviction  for  a  crime  affects  the  credibility  but  not 
the  competency  of  witnesses.  It  is  provided  that  "no  person  shall  be 
disqualified  as  a  witness  in  any  civil  action  or  proceeding  by  reason  of 
his  interest  in  the  event  of  the  same  as  a  party  or  otherwise,  or  by 
reason  of  his  conviction  of  a  crime,  but  such  interest  or  conviction  may  . 


40  Cases  on  Evidknck 

be  shown  for  the  purpose  of  affecting  his  credibility."  (Gen.  Stat. 
1897,  ch.  95,  paragraph  330;  Gen.  Stat.  1889  4414.)  See,  also.  Winter 
V.  Sass,  19  Kan.  556.  No  like  provision  is  to  be  found  in  criminal 
procedure,  and  the  one  with  reference  to  the  competency  of  witnesses 
does  not  except  convicts  from  the  common-law  rule  of  disqualification. 
(Gen.  Stat.  1897,  ch.  102,  Pg.  217;  Gen.  Stat.  1889,  5280.)  It  has, 
therefore,  been  held  that  "a  person  convicted  of  grand  larceny  and 
sentenced  to  imprisonment  in  the  penitentiary  is  not  a  competent  wit- 
ness in  a  criminal  case  while  the  sentence  remains  unrevoked  and  such 
person  not  pardoned."  (The  State  v.  Howard,  19  Kan.  508.)  As  the 
witness  Postlewaite  was  not  sentenced  to  imprisonment  in  the  peniten- 
tiary, the  question  remains  whether  he  is  disqualified  as  a  witness. 

It  is  conceded  that  if  the  convict  has  been  rendered  infamous  he  is 
incompetent  to  testify  in  a  criminal  proceeding.  But  what  is  it  that 
renders  him  infamous?  Is  it  the  nature  of  the  crime  of  which  he  is 
convicted  or  the  character  of  the  punishment  inflicted?  "Infamy"  has 
been  defined  as  a  state  of  incompetency  "implying  such  a  dereliction  of 
moral  principle  as  carries  with  it  a  conclusion  of  a  total  disregard  of 
the  obligation  of  an  oath."  (i  Greenl.  Ev.,  sec.  373.)  At  common  law 
treason,  felony,  and  such  crimes  as  involve  falsehood  and  were 
deemed  to  affect  the  administration  of  justice  work  the  disqualification 
of  a  witness ;  and  prior  to  the  adoption  of  the  federal  constitution  it  was 
held  that  the  infamy  which  disqualified  a  convict  to  be  a  witness  de- 
pended upon  the  character  of  the  crime  and  not  upon  the  nature  of  the 
punishment.  (Pendock  v.  McKinder,  Willes,  665;  Gilbert's  Ev.  143; 
2  Hawk.,  ch.  46,  sec.  102.)  The  fifth  amendment  to  the  federal  con- 
stitution, which  provides  that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  etc.,  has  given  rise  to  frequent  definitions  of  the 
term  "infamous  crime." 

In  some  of  the  earlier  decisions  there  was  a  tendency  on  the  part  of 
the  courts  to  hold  that  the  question  of  infamy  was  to  be  determined  by 
the  nature  of  the  crime  and  not  at  all  by  the  character  of  the  punish- 
ment, but  the  supreme  court  of  the  United  States  settled  that  the  test 
to  be  applied  in  determining  whether  an  offense  is  an  infamous  crime  is 
the  character  of  the  punishment  which  may  be  inflicted.  (Ex  parte 
Wilson,  114  U.  S.  426;  5  Sup.  Ct.  935;  Mackin  v.  The  United  States, 
117  id.  352,  6  Sup.  Ct.  'JT]',  In  re  Claasen,  140  id.  200,  11  Sup.  Ct.  73; 
Ex  parte  McClusky,  40  Fed.  71 ;  10  A.  &  E.  Encycl.  of  L.  603 ;  i  Bouv. 
Law  Diet.  1026.)  In  Ex  parte  Wilson,  supra,  however,  it  was  held  that 
the  real  criterion  to  be  applied  in  such  cases  is  whether  the  crime  is  one 


Competency  41 

for  which  the  statute  authorizes  the  court  to  award  an  infamous  punish- 
ment, not  whether  the  punishment  ultimately  awarded  is  an  infamous 
one.  If  the  accused  be  in  danger  of  being  subjected  to  an  infamous  pun- 
ishment the  crime  is  deemed  to  be  infamous,  although  infamous  punish- 
ment may  not  be  actually  inflicted.  If  this  rule  be  applied  to  the  case 
under  consideration,  it  results  in  the  conclusion  that  Postlewaite  was 
infamous  and  incompetent  to  testify.  Grand  larceny  being  a  felony,  is 
ordinarily  punishable  by  confinement  and  hard  labor  in  the  penitentiary. 
All  agree  that  punishment  of  this  character  renders  the  convict  infamous 
and  disqualifies  him  as  a  witness.  The  punishment  in  the  present  case 
was,  as  we  have  seen,  confinement  in  the  industrial  reformatory,  and  the 
character  of  the  punishment  and  discipline  there  is  reformatory  rather 
than  ignominious  or  infamous ;  however,  the  convict  was  subject  to  the 
infliction  of  the  severer  punishment. 

In  People  v.  Park,  41  N.  Y.  21,  it  was  held  tliat  a  person  under  six- 
teen years  of  age  who  was  convicted  of  burglary  in  the  third  degree 
was  incompetent  to  testify  as  a  witness,  although  he  was  sentenced  to 
the  house  of  refuge  established  for  the  reformation  of  juvenile  de- 
linquents. 

The  view  of  this  court  is  that  the  conviction  and  judgment  rendered 
Postlewaite  incompetent  as  a  witness,  and  that,  as  it  does  not  appear 
that  the  disability  has  since  been  removed  by  a  pardon  or  a  reversal,  the 
testimony  should  not  have  been  received.  His  was  the  most  important 
testimony  that  was  oflFered  in  the  case,  and  not  being  competent,  a  ma- 
jority of  the  court  hold  that  substantial  error  was  committed  in  ad- 
mitting it. 

In  England,  and  in  most  of  the  states,  statutes  have  been  enacted,  in 
one  form  or  another,  removing  the  disqualification  of  infamy,  so  that 
convicts  may  testify,  but  the  conviction  may  usually  be  shown  to  affect 
the  credibility  of  the  witness. 

The  authorities  cited  consistently  hold  tliat  whether  a  crime  is  in- 
famous is  determinable  by  the  punishment  to  which  a  convict  is  subject, 
rather  than  the  nature  of  the  crime  committed. 

Under  the  general  rule  and  apart  from  the  statute,  the  test  of  infamy 
is  the  punishment  which  might  be  inflicted,  but  our  statute  modifies  that 
and  makes  the  punishment  actually  inflicted  the  criterion. 

Imprisonment  at  hard  labor  has  always  been  deemed  infamous  pim- 
ishment,  and  under  the  statutes  the  civil  rights  of  a  convict  are  not  lost 
except  by  a  sentence  actually  imposing  such  punishment. 

Judgment  reversed  and  cause  remanded  for  a  new  trial. 


42  Cases  on  Evidence 

PRIVILEGED  COMMUNIOATIONS.1 

HATTON  V.  ROBINSON. 
31  Mass.  416.     (1833) 

Trespass  for  taking  two  mares,  a  chaise  and  chaise  harness.  The  de- 
fendant pleaded  the  general  issue,  and  filed  a  brief  statement  alleging 
that  he  attached  them  as  the  property  of  David  Winch. 

At  the  trial,  before  Wilde,  J.,  it  appeared  that  the  plaintiff  claimed  the 
property  under  a  bill  of  sale  from  Winch.  The  defendant,  to  prove  the 
bill  of  sale  fraudulent,  offered  in  evidence  the  deposition  of  Samuel 
Ames  Esq.,  a  counsellor  of  law  at  Providence.  The  plaintiff  objected 
to  the  admission  of  the  deposition,  on  the  ground  that  Mr.  Ames  was 
employed  in  the  transaction  testified  to  by  him,  as  the  attorney  of 
Winch  and  the  plaintiff,  and  that  all  he  knew  in  relation  to  it  was  com- 
municated to  him  in  that  capacity.  The  only  evidence  that  Mr.  Ames 
was  so  employed,  was  the  deposition  in  question. 

Shaw,  C.  J.  The  only  question  for  the  court  in  the  present  case,  is, 
whether  the  deposition  of  Mr.  Ames  was  properly  admitted  in  evidence ; 
and  this  depends  upon  the  further  question,  whether  the  matters  testi- 
fied to  by  him,  were  to  be  considered  as  within  the  rule  of  privileged 
communications. 

The  rule  upon  which  the  plaintiff's  counsel  in  the  present  case  relied, 
to  exclude  all  that  part  of  the  testimony  of  Mr.  Ames,  which  consisted 
of  statements  made  to  him  by  Winch,  as  to  his  views  and  motives  in 
making  the  sale,  upon  which  the  plaintiff  founds  his  title,  is  that  well 
known  rule  of  evidence,  founded  on  the  confidence  which  a  client  re- 
poses in  his  counsel,  attorney  or  solicitor.  By  this  rule  it  is  well  estab- 
lished, that  all  confidential  communications  between  attorney  and  client, 
are  not  to  be  revealed  at  any  period  of  time,  nor  in  any  action  or  pro- 
ceeding between  other  persons;  nor  after  the  relation  of  attorney  and 
client  has  ceased.  This  privilege  is  that  of  the  client  and  not  of  the 
attorney,  and  never  ceases,  unless  voluntarily  waived  by  the  client. 

We  had  occasion  lately  to  consider  this  subject  in  the  case  of  Foster 
V.  Hall,  12  Pick.  89,  which  was  not  published  at  the  time  this  cause 
•came  before  the  court,  in  which  it  was  decided,  that  the  privilege  was 
not  confined  to  the  case  of  communications  made  to  an  attorney,  with 
a  view  to  the  prosecution  or  defence  of  a  suit  or  legal  process ;  but  that 
it  extends  to  all  communications  made  to  an  attorney  or  counsellor,  duly 

I  Hughes  ou  Evidence,  p.  286. 


Privii,Eged  Communications  43 

qualified  and  authorized  as  such,  and  applied  to  by  the  party  in  that 
capacity,  with  a  view  to  obtain  his  advice  and  opinion  in  matters  of 
law,  in  relation  to  his  legal  rights,  duties  and  obligations,  whether  with 
a  view  to  the  prosecution  or  defense  of  a  suit  or  other  lawful  object. 
This  extent  and  modification  of  the  rule,  we  thought,  was  well  sup- 
ported by  the  weight  of  authority,  and  consistent  with  the  principle 
upon  which  the  rule  is  founded.  This  principle  we  take  to  be  this :  that 
so  numerous  and  complex  are  the  laws  by  which  the  rights  and  duties 
of  citizens  are  governed,  so  important  is  it,  that  they  should  be  permit- 
ted to  avail  themselves  of  the  superior  skill  and  learning  of  those  who 
are  sanctioned  by  the  law  as  its  ministers  and  expounders,  both  in  ascer- 
taining their  rights  in  the  country,  and  maintaining  them  most  safely  in 
courts,  without  publishing  those  facts,  which  they  have  a  right  to  keep 
secret,  but  which  must  be  disclosed  to  a  legal  adviser  and  advocate,  to 
enable  him  successfully  to  perform  the  duties  of  his  office,  that  the  law 
has  considered  it  the  wisest  policy  to  encourage  and  sanction  this  con- 
fidence by  requiring  that  on  such  facts  the  mouth  of  the  attorney  shall 
be  forever  sealed.  To  the  rule  as  thus  stated  we  are  still  inclined  to 
adhere. 

But  the  privilege  of  exemption  from  testifying  to  facts  actually 
known  to  the  witness,  is  in  contravention  to  the  general  rules  of  law; 
it  is  therefore  to  be  watched  with  some  strictness,  and  is  not  to  be  ex- 
tended beyond  the  limits  of  that  principle  of  policy,  upon  which  it  is 
allowed.  It  is  extended  to  no  other  person  than  an  advocate  or  legal 
adviser,  and  those  persons  whose  intervention  is  strictly  necessary  to 
enable  the  client  and  attorney  to  communicate  with  each  other,  as  an 
interpreter,  agent  or  attorney's  clerk.  And  this  privilege  is  confined  to 
counsel,  solicitors  and  attorneys,  when  applied  to  as  such,  and  when  act- 
ing in  that  capacity.    Wilson  v.  Rastall,  4  T.  R.  753. 

But  there  are  many  cases,  in  which  an  attorney  is  employed  in  trans- 
acting business,  not  properly  professional,  and  where  the  same  might 
have  been  transacted  by  another  agent.  In  such  case  the  fact  that  the 
agent  sustains  the  character  of  an  attorney,  does  not  render  the  com- 
munications attending  it  privileged ;  and  they  may  be  testified  to  by  him, 
as  by  any  other  agent.  In  Wilson  v.  Rastall,  already  cited,  Buller,  J. 
says,  that  the  privilege  is  confined  to  the  case  of  counsel,  solicitor  and 
attorney,  and  it  must  be  proved,  that  the  information  was  communicated 
to  the  witness,  in  one  of  those  characters ;  for  if  he  be  merely  employed 
as  steward,  he  may  be  examined. 

So  where  the  matter  is  communicated  by  the  client  to  his  attorney  for 
purposes  in  no  way  connected  with  the  object  of  the  retainer  and  em- 


44  Cases  on  Evidence 

ployment  of  the  attorney  as  such.  Cobden  v.  Kendrick,  4  T.  R.  432. 
The  court  say,  the  difference  is,  whether  the  communications  were  made 
by  the  client  to  his  attorney  in  confidence,  as  instructions  for  conducting 
his  cause,  or  a  mere  gratis  dictum. 

And  so  strictly  is  the  rule  held,  that  the  privilege  extends  only  to 
communications  made  by  the  client  to  his  attorney  for  the  purpose  of 
obtaining  legal  advice,  that  in  a  late  case  it  was  held,  that  a  communica- 
tion made  by  a  client  to  his  attorney,  not  for  the  purpose  of  asking  his 
legal  advice,  but  to  obtain  information  as  to  a  matter  of  fact,  is  not 
privileged,  and  may  be  disclosed  by  the  attorney,  if  called  as  a  witness  in 
a  cause.    Bramwell  v.  Lucas,  2  Barn.  &  Cressw.  745. 

Looking  at  the  deposition  of  Mr.  Ames,  with  these  views  in  respect  to 
the  legal  privilege  of  communications  between  attorney  and  client,  it 
appears  quite  manifest,  that  the  rule  of  exemption  does  not  apply  to 
any  communication  made  by  Hatton,  the  plaintiff,  inasmuch  as  it  does 
not  appear  that  the  witness  was  applied  to  by  him,  or  that  the  relation  of 
attorney  and  client,  in  any  respect,  subsisted  between  them.  In  regard 
to  those  communications,  therefore,  it  appears  to  the  court,  that  the  wit- 
ness cannot  be  exempted  from  testifying. 

But  upon  examining  the  other  part  of  Mr.  Ames'  deposition,  we  can- 
not perceive  that  the  communications  were  made  to  him  by  Winch  with 
the  purpose  of  instructing  him  in  any  cause,  or  engaging  him  in  the  con- 
duct of  any  professional  business,  or  of  obtaining  any  legal  advice  or 
opinion.  If  the  disclosure  of  his  views  and  purposes,  in  the  convey- 
ance of  property  proposed  to  be  drawn,  was  not,  as  stated  in  some  of 
the  books,  a  mere  gratis  dictum,  the  only  purpose  seems  to  have  been  to 
satisfy  Mr.  Ames'  mind,  and  remove  any  scruple  that  he  might  enter- 
tain, as  to  the  character  of  the  transaction,  and  to  convince  him,  that 
whatever  might  be  the  legal  character  of  the  act,  it  was  not  attended 
with  moral  turpitude.  It  did  satisfy  him.  that  he  was  not  engaged  in 
a  conspiracy  to  cheat,  and  induced  him  to  consent  to  draw  the  deed. 
Here  was  no  legal  advice  asked,  no  opinion  requested  as  to  the  effect 
and  operation  of  such  a  conveyance  in  point  of  law,  and  none  was 
given.  We  are  therefore  necessarily  brought  to  the  conclusion,  that 
either  these  disclosures  were  made  without  any  particular  motive,  or  if 
there  was  purpose,  connected  with  the  proposed  draft,  it  was  to  satisfy 
Mr.  Ames'  mind,  upon  a  point  of  fact,  not  for  the  information  of  his 
own  in  point  of  law,  and  in  either  event  they  are  not  to  be  deemed 
privileged  communications,  which  the  witness  was  prohibited  from  dis- 
closing. The  whole  deposition  tlieref  ore  was  rightly  admitted,  and  con- 
formably to  the  case  agreed,  the  nonsuit  must  stand. 


Privii,eged  Communications  45 

GREENLAW  v.  KING. 
I  Beav.  137.     (1838) 

LangdalE,  M.  R.  This  is  a  bill,  filed  by  the  plaintiff  against  the  de- 
fendant, to  have  it  declared,  that  a  security  is  void  or  satisfied.  A  mo- 
tion is  now  made  for  the  production  of  certain  papers  which  by  the 
answer,  are  admitted  to  be  in  the  possession  of  the  defendant. 

As  to  some  of  the  papers  there  is  no  dispute,  viz.,  the  documents  in 
the  first  schedule,  which,  it  is  admitted,  ought  to  be  produced ;  and  there 
is  no  doubt  that  certain  documents  in  the  second  schedule,  viz.,  the  cor- 
respondence of  the  defendant  and  his  agent  with  his  counsel  or  solicitor 
ought  to  be  protected ;  the  dispute  arises  on  other  papers. 

The  production  is  resisted  on  the  ground  that  the  communications 
were  confidential  and  ought  to  be  protected.  I  am  surprised  at  the  ex- 
tent of  the  protection  from  discovery  which  is  sometimes  claimed.  The 
general  rule  of  the  Court  is,  no  doubt,  that  what  the  Defendant  knows 
relating  to  the  matters  in  question,  the  Plaintiff  has  a  right  to  know 
also,  and  for  this  very  purpose,  to  prevent  the  Defendant  from,  sup- 
pressing within  his  own  breast  the  matters  material  to  the  determina- 
tion o'f  the  question  between  the  parties.  A  defendant  may  resist  a 
just  demand,  knowing,  from  circumstances  solely  within  his  own  knowl- 
edge, such  resistance  on  his  part  to  be  unjust;  this  would  be  a  fraud, 
and  could  only  be  prevented  by  a  discovery.  The  Defendant,  on  the 
other  hand,  by  filing  a  cross  bill  has  a  right  to  know  all  that  the  Plain- 
tiff knows,  and  may  be  material  for  his  defence;  this  is  one  of  the 
great  distinctions  between  courts  of  equity  and  the  other  courts  in  this 
country ;  here  you  can  appeal  to  the  conscience  of  the  party,  and  obtain 
information;  to  extend  the  protection  from  discovery,  further  than  is 
absolutely  necessary,  would  be  to  cripple  the  jurisdiction  of  courts  of 
equity  in  the  most  important  particular.  But  there  are  exceptions  to 
the  general  rule,  and  one  is  where  knowledge  of  the  fact  has  been  com- 
municated between  the  party  and  his  solicitor;  and  it  has  been  argued, 
that  in  every  case  in  which  a  solicitor  is  bound  to  conceal  his  knowledge, 
the  client  himself  ought  to  be  protected  from  making  such  discovery. 
I  do  not  accede  to  that  proposition.  There  are  many  cases  in  which 
it  would  be  contrary  to  the  duty  of  a  solicitor  to  disclose  facts,  of  which, 
upon  a  bill  being  filed  in  this  Court,  the  client  would  be  bound  to  make 
a  discovery;  this  shows  that  the  two  propositions  are  not  co-extensive; 
the  solicitor  may  not  be  bound,  or  not  permitted  to  disclose  matters 
which  come  to  his  knowledge  as  a  solicitor,  and  yet  the  client  may  be 


46  Cases  on  Evidencb 

bound  to  disclose  them.  It  is  decided,  that  if  the  knowledge  of  the 
client  be  obtained  through  his  solicitor,  there  may  be  a  protection ;  but  in 
this  case  it  is  apparent  that  the  knowledge  of  the  Defendant  has  not 
come  to  him  through  his  solicitor.  The  argument  is  singular ;  it  is  said 
the  information  required  to  be  disclosed  was  obtained  from  the  late 
bishop,  by  Leigh  in  his  character  of  solicitor ;  and  that  it  was  therefore 
his  duty  not  to  communicate  it ;  that  it  must  have  been  from  Leigh  that 
the  Defendant  acquired  the  information;  and  that  the  Defendant  was 
entitled  to  the  same  privilege  as  Leigh  and  was  not,  therefore,  bound  to 
state  the  information,  because  Leigh  would  not  have  been  at  liberty  to 
disclose  it  as  against  the  late  bishop.  It  is  very  difficult  to  follow  this. 
The  bishop's  executors,  it  is  true,  are  not  here ;  but,  for  any  thing  that 
appears  to  the  contrary,  the  Defendant  has  obtained  the  information 
from  the  bishop  himself.  If  Leigh  performed  his  duty,  which  I  must 
assume  he  did,  he  would  not  have  delivered  up  the  papers  without  the 
consent  of  the  bishop  or  his  executor ;  and  as  these  papers  do  not  appear 
to  have  passed  between  the  Defendant  and  his  solicitor,  and  are,  there- 
fore, not  within  the  exception,  they  must  be  produced. 

I  take  it  to  be  clear,  that  the  other  documents  which  are  the  subject  of 
discussion,  consisting  of  the  correspondence  which  has  taken  place  since 
the  dispute  arose,  betv.-een  the  Defendant  and  the  solicitor  to  the  late 
bishop,  but  who  is  not  the  solicitor  of  the  Defendant,  being  merely  his 
agent  and  confidential  friend,  are  not  protected.  If  these  letters  had 
been  written  to  Leigh  for  the  purpose  of  being  communicated,  by  that 
channel,  to  counsel,  another  question  might  have  arisen;  I  might  have 
thought  it  subject  to  a  different  rule,  but  it  is  not  so;  they  are  com- 
munications which  have  taken  place  between  the  Defendant  and  Leigh, 
not  in  his  character  of  solicitor ;  and  it  cannot  be  said,  that  a  mere  friend 
is  a  person  so  confidential  that  a  communication  with  him  is  privileged ; 
the  cases  of  privilege  are  confined  to  solicitors  and  their  clients;  and 
stewards,  parents,  medical  attendants,  clergymen  and  persons  in  the 
most  closely  confidential  relation  are  bound  to  disclose  communications 
made  to  them.  How  can  it  be  said  that  a  mere  friend  is  not  equally 
bound?  There  must  be  a  production  of  the  papers  and  the  correspond- 
ence which  passed  between  bishop  and  Leigh  in  the  lifetime  of  the 
bishop;  and  of  those  papers  between  the  Defendant  and  Leigh,  acting 
as  his  agent  and  not  as  his  solicitor. 

The  production  of  the  opinion  of  counsel  was  not  required,  and  all 
the  other  papers,  except  the  correspondence  between  the  Defendant  and 
his  solicitor,  were  ordered  to  be  produced. 


Privii^eged  Communications  47 

PHILLIPS  V.  CHASE. 
201  Mass.  444.     (1909) 

Petition  filed  in  the  Probate  Court  for  the  county  of  Essex  on  Octo- 
ber 14,  1905,  by  Leonard  H.  Phillips  and  others,  as  the  heirs  and  next 
of  kin  of  Jeannie  P.  Chase,  late  of  Swampscott,  who  died  on  Septem- 
ber 13,  1905,  praying  that  a  decree  of  that  court  entered  on  April  23, 
1889,  whereby  DeForest  Woodruff  Chase  was  made  the  child  by  adop- 
tion of  Jeannie  P.  Chase,  be  revoked  on  the  ground  that  it  was  pro- 
cured by  the  undue  influence,  threats  and  duress  of  Horace  Chase.,  the 
husband  of  Jeannie  P.  Chase,  and  was  a  fraud  upon  the  court. 

In  the  Probate  Court,  Harmon,  J.  made  a  decree  revoking  the  former 
decree  of  adoption  on  the  ground  of  undue  influence.  Horace  Chase, 
as  the  sole  heir  at  law  of  DeForest  Woodruff  Chase,  who  had  died  after 
the  filing  of  the  petition,  appealed.  He  also  appealed  as  the  administra- 
tor of  the  estate  of  DeForest  Woodruff  Chase.  On  appeal  the  case 
was  tried  before  Braley,  J.,  who  submitted  to  a  jury  the  following 
issues :  . 

"Did  Jeannie  P.  Chase  of  her  own  free  will  adopt  DeForest  Wood- 
ruflf  Chase  on  April  23,  1889?" 

"Was  she  unduly  influenced  in  the  making  of  said  adoption  by  Horace 
Chase  or  any  other  person  ?" 

Upon  the  first  issue  the  jury  answered  "No,"  and  upon  the  second 
issue  answered  "Yes."  Horace  Chase,  the  respondent  and  appellant, 
alleged  exceptions  relating  to  the  admission  of  evidence  against  his  ob- 
jection, raising  the  questions  which  are  discussed  and  disposed  of  in 
the  opinion. 

Knowlton,  C.  J.  This  is  a  petition  for  a  revocation  of  a  decree  of 
the  Probate  Court  for  the  adoption  of  DeForest  Woodruff  Chase  by 
Jeannie  P.  Chase,  then  the  wife  of  Dr.  Horace  Chase. 

An  interesting  question  is  raised  by  the  respondent  on  the  admission 
of  the  testimony  of  Mr.  Chick,  at  one  time  an  attorney  of  Mrs.  Chase, 
in  regard  to  an  affidavit  and  will  made  by  him  for  her,  and  certain  com- 
munications, relative  to  the  adoption,  to  be  made  by  him  to  her  brothers 
on  her  behalf  after  her  death.  He  testified,  among  other  things,  that 
she  told  him  to  "tell  her  brothers  that  this  adoption  was  not  her  own 
free  act  and  deed,  that  it  was  brought  about  by  ill  treatment  and  coer- 
cion, duress  on  the  part  of  her  husband,  and  that  she  did  not  want  it  to 
stand."  He  prepared  an  affidavit  for  her  which  she  signed  and  swore  to 
before  a  notary,  and  a  will  in  which  she  said,  "I  now  declare  that  said 


48  Cases  on  Evidence 

adoption  was  not  made  by  me  of  my  free  will  and  choice  but  was  forced 
upon  me  by  my  husband  by  threats  of  abandonment  and  I  believe  it  was 
so  forced  upon  me  in  order  that  said  DeForest  W.  Chase  might  claim  as 
my  heir  the  residue  under  a  certain  trust  settlement,"  etc.  The  state- 
ment in  the  affidavit  was  in  the  same  substance  as  that  in  the  will.  It 
is  the  contention  of  the  respondent  that  this  evidence  should  have  been 
excluded  as  a  private  communication  from  a  client  to  an  attorney. 

It  has  been  repeatedly  held  that  this  rule  of  privilege  should  be  con- 
strued strictly.  Foster  v.  Hall,  12  Pick.  89,  98.  Hatton  v.  Robinson, 
14  Pick.  416,  422.  It  is  for  the  protection  and  benefit  of  the  client,  so 
that  his  disclosures  may  not  be  used  against  him  in  controversy  after 
his  death  between  his  estate  and  those  claiming  adversely  to  it,  the  priv- 
ilege may  be  waived  by  his  executor  or  administrator,  (Brooks  v. 
Holden,  175  Mass.  137)  or  by  his  heirs  (Fossler  v.  Schriber,  38  111. 
172)  ;  but  where  the  controversy  is  not  between  an  estate  and  persons 
claiming  against  it,  but  is  to  determine  who  shall  take  by  succession  the 
property  of  a  deceased  person,  and  both  parties  claim  under  him,  the 
reason  for  the  privilege  does  not  exist,  and  neither  can  set  up  a  claim 
of  privilege  against  the  other.  Doherty  v.  O'Callaghan,  157  Mass.  90; 
Russell  V.  Jackson,  9'Hare,  387;  Blackburn  v.  Crawfords,  3  Wall.  175, 
192,  194;  Glover  v.  Patten,  165  U.  S.  394,  406.  See,  also,  as  tending  to 
establish  the  same  proposition.  Layman's  Will,  40  Minn.  371 ;  Coates 
V.  Semper,  82  Minn.  460;  Kern  v.  Kern,  154  Ind.  29;  O'Brien  v.  Spald- 
ing, 102  Ga.  490;  Scott  V.  Harris,  113  111.  447,  454;  Thompson  v.  Ish, 
99  Mo.  160,  175. 

There  was  also  a  special  reason  for  the  admission  of  this  evidence, 
because  there  was  an  implied  waiver  of  a  privilege  of  Mrs.  Chase  in  her 
request  that  the  fact  should  be  communicated  to  her  brothers  after  her 
death.  Scott  v.  Harris,  113  111.  447;  Bruce  v.  Osgood,  113  Ind.  360; 
Ferguson  v.  McBean,  91  Cal.  63,  73 ;  Blackburn  v.  Crawfords,  3  Wall. 
175,  194;  Winters  v.  Winters,  102  Iowa,  53,  57,  59.  This  evidence  was 
rightly  admitted. 

Exceptions  overruled. 


Privileged  Communications  49 

MATTER  OF  KING  v.  ASHLEY. 
170}  N.  Y.  281.     (1904) 

Per  Curiam.  This  was  a  proceeding  instituted  under  sections  2707 
and  2709  of  the  Code  of  Civil  Procedure  for  the  examination  of  the 
appellant  to  obtain  a  discovery  of  his  information  concerning  property 
belonging  to  the  estate  of  William  Moore,  deceased.  The  appellant  at- 
tended in  answer  to  a  citation,  but  declined  to  answer  certain  questions 
put  to  him  on  the  ground  that  by  section  835  of  the  Code  of  Civil  Pro- 
cedure, he  was  forbidden  to  disclose  the  information  sought,  having 
been  the  attorney  and  counsel  of  the  deceased.  The  sole  object  for 
which  the  proceeding  was  instituted  was  to  obtain  the  disclosure  of  in- 
formation. We  think  that  the  order  punishing  the  witness  for  failure 
to  answer  is  the  final  order  in  the  proceeding,  and,  therefore,  appealable 
to  this  court.  (People  ex  rel.  Grant  v.  Warner,  51  Hun,  53;  affirmed 
on  opinion  below,  125  N.  Y.  746;  Matter  of  Strong  v.  Randall,  177 
N.  Y.  400.) 

On  the  merits  we  think  the  order  should  be  affirmed.  It  is  not  neces- 
sary to  consider  whether,  by  the  execution  and  publication  of  a  will  dis- 
posing of  his  interest  in  the  estate  of  William  Van  Rensselaer,  the  testa- 
tor withdrew  any  communications  he  may  have  made  to  the  witness,  as 
to  the  identity  and  location  of  that  estate,  from  the  seal  of  confidence 
and  the  protection  of  section  857  of  the  Code,  specifically  set  forth  in 
the  order  adjudging  the  appellant  guilty  of  contempt.  These  questions 
do  not  call  for  communications  from  the  deceased  to  the  appellant,  but 
for  information  which  he  had  obtained  from  other  sources  as  appears 
by  his  own  testimony.  It  was  settled  in  the  cases  which  arose  before 
the  enactment  of  the  Code  provisions  on  the  subject  that  the  privilege 
of  the  attorney  (or  rather  that  of  the  client,  for  it  is  such)  does  not  ex- 
tend to  everything  which  comes  to  his  knowledge  while  acting  as  at- 
torney or  counsel,  and  does  not  include  information  derived  from  other 
persons  or  other  sources.  ( Crisby  v.  Berger,  1 1  Paige,  377 ;  Bogert  v. 
Bogert,  2  Edw.  Ch,  399 ;  Coveney  v.  Tannahill,  i  Hill,  33.)  The  section 
of  the  Code  is  a  mere  re-enactment  of  the  common  law  rule  (Hurlburt 
v.  Hurlburt,  128  N.  Y.  420).  The  appellant  was,  therefore,  properly 
required  to  give  all  his  knowledge  or  information  on  the  subject  that 
did  not  involve  communications  with  the  deceased. 

The  order  appealed  from  should  be  affirmed  with  costs. 

CuLLEN,  Ch.  J.,  O'Brien,  Martin,  Vann,  and  Werner,  J.,  concur  ; 
Gray  and  Haight,  JJ.,  absent. 

Order  affirmed. 


50  Cases  on  Evidence 

STATE  V.  WHITE, 
jp  Kan.  445.    (1877) 

HoRTON,  C.  J.  The  defendant  White  was  charged  on  information 
with  the  ofTense  of  bigamy.  The  first  jury  impanelled  to  try  the 
cause  could  not  agree,  and  were  discharged  without  finding  a  verdict; 
and  another  jury,  before  which  the  cause  was  tried  at  the  same  term, 
rendered  a  verdict  of  guilty.  Thereupon  the  defendant  was  sentenced 
to  the  penitentiary  for  the  term  of  three  years,  and  he  now  appeals 
to  this  court. 

The  serious  error  alleged  is,  the  action  of  the  court  in  compel- 
ling the  defendant  to  disclose  communications  between  himself  and 
his  attorney.  Evidence  having  been  admitted  concerning  a  divorce 
having  been  granted  between  the  prisoner  and  his  first  wife,  in  the 
State  of  New  York,  prior  to  the  second  marriage,  the  defendant, 
testifying  in  his  own  behalf  was  required  by  the  court  to  answer,  on 
cross-examination,  "if  he  had  not  been  consulted,  or  advised  by  his 
counsel  in  regard  to  obtaining  a  copy  of  such  decree."  Objection  was 
duly  made  to  the  question  on  the  ground  that  the  communications 
between  counsel  and  client  were  privileged;  that  the  court  overruled 
the  objection,  and  in  so  doing  committed  material  error.  The  de- 
fendant in  fully  answering  the  question  gave  the  advice  of  one  of 
his  lawyers  to  him.  The  statute  provides  that  an  attorney  shall  be 
incompetent  to  testify  concerning  communications  made  to  him  by  his 
client  in  that  relation,  or  his  advice  thereon,  without  the  client's  con- 
sent. This  statute  would  be  of  no  utility  or  benefit,  if  the  client  could 
be  compelled  against  his  consent,  to  make  such  disclosures.  It  would 
be  absurd  to  protect  by  legislative  enactment  professional  communi- 
cations, and  to  leave  them  unprotected  at  the  examination  of  the 
client.  In  such  an  event,  in  all  civil  actions,  the  confidential  state- 
ments of  client  and  counsel  would  be  exposed,  and  likewise  the  same 
would  occur  in  all  criminal  actions  where  the  defendant  should  tes- 
tify. The  authorities  are  otherwise.  The  true  views  seem  to  be, 
that  communications  which  the  lawyer  is  precluded  from  disclosing, 
the  client  cannot  be  compelled  to  disclose.  This  privilege  is  essen- 
tial to  public  justice,  for  did  it  not  exist  no  man  would  dare  to  consult 
a  professional  adviser,  with  a  view  to  his  defense,  or  to  the  enforce- 
ment of  his  rights.  Whar.  on  Ev.  sec.  583;  Hemenway  v.  Smith,  28 
Vt.  701  Games  v.  Piatt,  15  Abb.  Pr.  (N.  S.)  337;  Merritt  v.  Morgan, 
21   Wend.  467;  Williams  v.   Fitch,    18   N.  Y,   546-550;   Britton   v. 


Privilege  Communications  51 

Lorenz,  45  N.  y.  51-59;  Bigler  v.  Regher,  43  Ind.  112;  i  Greenl.  on 
Ev.  sees.  236-240.  It  is  urged  against  a  reversal  of  the  judgment, 
that  the  question  might  have  been  answered  by  "yes"  or  "no",  and 
that  the  advice  or  conversation  testified  to  was  not  very  material,  and 
could  not  have  been  prejudicial  to  the  rights  of  the  defendant.  We 
answer  that  the  District  Court  violated  a  very  important  rule  of 
evidence,  and  forced  the  disclosure  of  privileged  communications  in 
a  criminal  case  where  the  liberty  of  the  defendant  was  at  stake;  and 
we  will  not  stop  to  weigh  the  effect  of  the  answer,  or  determine  how 
far  the  rights  of  the  prisoner  were  sacrificed.  It  is  very  important 
to  public  interests  that  the  purpose  of  the  statute  as  to  such  com- 
munications should  be  maintained  in  all  its  rigor.  It  is  the  best  rule. 
Obsta  principiis.  If  a  client  sees  fit  to  be  a  witness,  he  makes  him- 
self liable  to  a  full  cross-examination.  But  in  this  case  the  defend- 
ant did  not,  in  his  direct  examination,  refer  to  his  counsel,  or  any 
conversation  with,  or  advice  from  them;  and  the  question  was  inex- 
cusable. 

For  the  error  committed  in  the  action  of  the  court  in  compelling 
the  disclosure  of  the  communications  between  the  defendant  and  his 
attorney,  the  judgment  is  reversed,  and  the  action  remanded  for  a 
new  trial. 

All  the  Justices  concurring. 


NAVE  V.  BAIRD. 

NAVE  V.  LANE  et  al. 

12  Ind.  318.     (1859) 


Perkins,  J.  Baird  sued  Nave  upon  a  promissory  note  for  200 
dollars. 

Answer  by  way  of  counter-claim,  alleging  that  the  note  was  given  in 
consideration  that  said  Baird,  an  attorney  at  law,  should  attend  to 
a  certain  cause  then  pending  against  said  Nave  in  the  Fountain  Cir- 
cuit Court;  that  Baird  did  not,  in  a  skillful  manner,  conduct  the 
defense  of  the  cause  and  refused  to  obey  the  instructions  of  his  client 
in  these  particulars,  viz.:  that  he  refused  to  apply  for  a  change  of 
venue  therein,  and  refused  to  put  in  the  testimony  of  certain  witnesses. 
It  is  further  alleged  that  judgment  went  against  Nave,  whereby  he 


52  Casks  on  Evidence 

was  damaged  3,000  dollars,  which  amount,  he  claims,  should  be  ad- 
judged in  his  favor  against  Baird. 

A  jury  was  called  to  try  the  issue  made.  Verdict  for  the  plaintiff, 
upon  which  the  court  rendered  judgment. 

There  is  another  point  in  the  case.  Associated  with  Mr.  Baird,  in 
the  defense,  were  Messrs  Lane  and  Willson  of  Crawfordsville.  They 
were  present  at  the  consultations  between  Mr,  Nave  and  Mr.  Baird, 
and  on  the  trial  of  this  cause,  to  rebut  testimony  introduced  by  Mr. 
Nave,  as  to  what  transpired  in  those  consultations,  offered  Mr.  Will- 
son  as  a  witness.  Mr.  Nave  objected  to  his  testifying,  on  the  ground 
that  he  was  not  competent  to  disclose  confidential  communications. 

As  a  general  proposition,  an  attorney  cannot,  as  a  witness  against 
his  client,  disclose  such  communications.  But  the  rule  does  not  apply 
where  the  client  sues  the  attorney  for  disobeying  instructions  alleged 
to  have  been  given  in  such  consultations,  and  for  unskill  fully  man- 
aging a  cause  upon  information  given  to  him  by  his  client  in  them. 

Upon  the  whole  we  see  no  error  in  the  case. 

Per  Curiam. — The  judgment  is  affirmed  with  5%  damages  and 
costs. 


LANE  V.  BOICOURT. 
128  Ind.  420.     (1891) 


Appellee  sued  appellant,  a  physician,  for  malpractice  in  the  per- 
formance of  an  operation  upon  appellee's  wife.  Judgment  for  plain- 
tiff.    Motion  for  new  trial  overruled.     Defendant  appeals. 

Elliott,  j,  *  ♦  *  "We  come  now  to  a  question  presented  by 
the  ruling  denying  a  new  trial.  The  appellee,  his  wife,  and  his  wife's 
mother,  testified  as  to  all  that  was  done  by  the  appellant  at  the  time 
the  surgical  operation  which  caused  the  injury  to  the  appellee's  wife 
was  performed.  The  appellant  also  testified,  without  objection,  to 
what  occurred  at  that  time.  He  then  called  Dr.  Williamson,  who  was 
in  attendance  as  a  consulting  surgeon,  but  the  trial  court  refused  to 
permit  him  to  testify  to  any  matter  that  occurred  at  the  time  the 
operation  was  performed  by  the  appellant.  In  our  judgment  this  was 
error. 

The  testimony  given  by  the  witnesses  of  the  appellee  broke  the 
seal  of  privacy  and  gave  publicity  to  the  whole  matter.     The  patient 


Privileged  Communications  -  53 

waived  the  statutory  rule.  The  course  pursued  laid  the  occurrence 
open  to  investigation.  Nothing  was  privileged,  since  all  was  pub- 
lished. The  statute  was  not  meant  to  apply  to  such  a  case  as  this, 
nor  Is  it  within  the  letter  or  the  spirit  of  the  law.  If  a  patient  makes 
public  in  a  court  of  justice  the  occurrences  of  the  sick  room  for  the 
purpose  of  obtaining  a  judgment  for  damages  against  his  physician, 
he  can  not  shut  out  the  physician  himself,  nor  any  other  who  was 
present  at  the  time  covered  by  the  testimony.  When  the  patient  vol- 
untarily publishes  the  occurrence,  he  can  not  be  heard  to  assert  that 
the  confidence  which  the  statute  was  intended  to  maintain  inviolate 
continues  to  exist.  By  his  voluntary  act  he  breaks  down  the  bar- 
riers, and  the  professional  duty  of  secrecy  ceases.  It  would  be  mon- 
strous if  the  patient  himself  might  detail  all  that  occurred,  and 
yet  compel  the  physician  to  remain  silent.  The  principle  is  the  same 
whether  the  physician  called  is  a  consulting  physician,  or  is  the  de- 
fendant. The  opening  of  the  matter  to  investigation  removed  the 
obligation  of  secrecy  as  to  all,  not  merely  as  to  one.  When  the  obli- 
gation to  silence  is  broken,  it  is  broken  for  the  defendant  as  well  as 
for  the  plaintiff.  As  to  all  witnesses  of  the  transaction  it  is  fully 
opened  to  investigation,  if  opened  at  all,  by  the  party  having  a  right 
to  keep  it  closed.  A  patient  can  not  elect  what  witnesses  shall  be 
heard  and  what  shall  not;  for  if  once  investigation  legitimately  begins, 
it  continues  to  the  end.  A  patient  may  enforce  secrecy  if  he  chooses, 
but  where  he  himself  removes  the  obligation  he  can  not  avail  himself 
of  the  secrets  of  the  sick  room,  or  of  the  consultation,  we  may  say 
in  conclusion,  that  the  physician  is  forbidden  to  reveal,  and  what  is 
made  public  by  pleadings  and  by  evidence  in  a  court  of  justice  can 
by  no  possibility  be  privileged  to  benefit  the  party  who  has  given  it 
such  wide  publicity. 

Judgment  reversed. 


In  re  REVOCATION  OF  PROBATE  of  the  WILL  of 
MARY  A.  MYER,  Deceased. 

184  N.  Y.  54.     (1906) 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  January  11,  1905, 
which  affirmed  a  decree  of  the  Seneca  County  Surrogate's  Court  re- 


54  CASES  ON  Evidence 

voking  probate  of  the  will  of  Mary  A.  Myer,  deceased. 

This  proceeding  was  instituted  in  the  Surrogate's  Court  of  Seneca 
county  to  procure  the  revocation  of  the'  probate  of  the  will  of  Mary 
A.  Myer,  deceased,  upon  allegations  that  at  the  time  of  the  execu- 
tion thereof  she  was  not  mentally  capable  of  making  a  will  and  that 
its  execution  was  procured  by  the  undue  influence  of  her  son,  William 
H.  Myer.  The  petitioners  are  Mary  L.  C.  King,  the  only  daughter 
of  testatrix,  and  John  V.  ^lyer,  her  youngest  son. 

Werner,  J.  The  unanimous  affirmance  by  the  court  below  pre- 
cludes the  examination  in  this  court  of  any  of  the  questions  raised 
by  the  appellants,  save  those  arising  upon  exceptions  taken  to  the 
rulings  of  the  surrogate  upon  the  admission  or  rejection  of  evidence. 
Some  of  the  exceptions  thus  taken  present  errors  which  require  a 
reversal  of  the  order  appealed  from,  because  it  appears  that  the 
exceptions  were  clearly  prejudiced  by  such  rulings.     (Code  Civ.  Pro. 

2545-) 

The  petitioners  introduced  testimony  tending  to  show  that,  at  the 
time  of  the  execution  of  the  will,  the  testatrix  was  afflicted  with 
paresis,  which  it  was  claimed  deprived  her  of  testamentary  capacity. 
In  order  to  supplement  and  support  this  evidence,  the  petitioners 
called  two  physicians,  Drs.  Carlton  and  Townsend.  The  former  had 
been  the  medical  adviser  of  the  testatrix's  brother,  and  the  latter  of 
her  mother.  These  witnesses  testified  that  both  the  mother  and  brother 
of  the  testatrix  had  been  afflicted  with  what  they  termed  "general 
paresis ;"  that  their  knowledge  of  this  condition  was  obtained  while 
attending  such  persons  in  their  professional  capacity,  and  that  such 
knowledge  was  necessary  in  order  to  treat  them.  The  testimony  was 
objected  to  as  incompetent  and  privileged  under  section  834  of  the 
Code  of  Civil  Procedure,  and  the  ruling  admitting  it  was  properly 
excepted  to  because  it  was  inadmissible  on  two  grounds,  i.  It  is 
clearly  within  the  provisions  of  section  834,  which  prohibits  a  physi- 
cian from  disclosing  "any  information  which  he  acquired  in  attending 
a  patient,  in  a  professional  capacity,  and  which  was  necessary  to 
enable  him  to  act  in  that  capacity."  (Renihan  v.  Dennin,  103  N.  Y. 
573;  Feeney  v.  Long  Island  R.  R.  Co.,  116  id.  375;  Fisher  v.  Fisher, 
129  id.  654;  Nelson  v.  Village  of  Oneida,  156  id.  219;  Meyer  v. 
Knights  of  Pythias,  178  id.  63.) 

By  the  express  terms  of  section  836  the  provisions  of  section  834 
are  made  to  apply  to  the  "examination  of  any  person  as  a  witness." 
The  fact  that  the  testimony  of  these  physicians  related  to  patients, 
who  were  not  parties  to  the  proceedings  or  inter^cf<>H  therein,  and 


Privileged  Communications  55 

who  were  in  fact  dead  at  that  time,  does  not  annul  the  prohibition  of 
the  statute.  In  Davis  v.  Supreme  Lodge  (165  N.  Y.  159)  the  defense 
sought  to  prove  the  cause  of  death  of  two  aunts  of  the  deceased  by 
the  testimony  of  their  attending  physicians.  The  evidence  was  ex- 
cluded, and  this  court  upheld  the  ruling.  Judge  O'Brien,  in  writing 
for  the  court,  said  (p.  163)  :  "This  court  has  held  that  the  state- 
ments of  the  attending  physician,  for  the  purpose  of  establishing  the 
cause  of  death  either  of  the  insured  himself  or  of  his  ancestors  or 
their  descendants,  although  not  parties  to  nor  beneficiaries  under  the 
contract,  were  not  admissible.  They  are  excluded  not  only  for  the 
purpose  of  protecting  parties  from  the  disclosure  of  information 
imparted  in  the  confidence  that  must  necessarily  exist  between  the 
physician  and  patient,  but  on  grounds  of  public  policy  as  well.  The 
disclosure  by  a  physician,  whether  voluntary  or  involuntary,  of  the 
secrets  acquired  by  him  while  attending  upon  a  patient  in  his  pro- 
fessional capacity,  naturally  shocks  our  sense  of  decency  and  pro- 
priety, and  this  is  one  reason  why  the  law  forbids  it."  (Grattan  v. 
Met.  Life  Ins.  Co.,  80  N,  Y.  281 ;  Westover  v.  ^tna  Life  Ins.  Co., 
99  id.  56;  Nelson  v.  Village  of  Oneida,  156  id.  219.  The  general 
rule  of  exclusion  provided  for  in  section  834  is  not  obviated  in  this 
case  by  the  exceptions  thereto  contained  in  section  846,  because  the 
testimony  objected  to  does  not  fall  within  either  of  these  exceptions. 
The  decree  of  the  surrogate  and  the  order  of  the  Appellate  Division 
should  be  reversed  and  a  new  trial  ordered  before  a  jury  in  the  Su- 
preme Court,  costs  to  abide  the  event. 


ROSE  v.  ORDER  OF  PATRICIANS. 
J26  Mich.  577.     (1901) 

Assumpsit,  by  Thomas  Rose  against  the  Supreme  Court  of  the 
Order  of  Patricians  on  a  benefit  certificate.  From  a  judgment  for 
plaintiff,   defendant  brings  error.     Affirmed. 

The  defendant  is  a  fraternal  beneficiary  order,  incorporated  under 
the  laws  of  Michigan.  Plaintiff's  wife  became  a  member  of  the 
order  August  18,  1898,  and  passed  the  usual  medical  examination. 
She  died  November  i8th  following.  Plaintiff  was  her  beneficiary. 
Her  certificate  was  for  $1,000.  In  her  application  she  stated  that 
she  was  45  years  of  age;  was  in  good  health;  had  never  consulted  a 


56  Cases  on  Evidence 

physician;  never  had  a  serious  illness;  no  disease  of  heart,  stomach, 
or  bowels;  no  irregularity  of  the  heart's  action;  no  loss  of  conscious- 
ness; no  palpitation  of  the  heart.  This  application  further  stated 
that  the  answers  and  statements  are  correct,  and  shall  form  the  basis 
for  the  issuance  of  a  benefit  certificate,  and  that  the  certificate  issued 
thereon  and  the  answers  and  statements  shall  be  considered  together, 
and  construed  as  one  complete  contract. 

Grant,  J.  A  physician  who  had  been  employed  by  the  deceased 
was  called  as  a  witness  by  the  defendant,  had  testified  to  his  attend- 
ance upon  her,  and  he  was  then  asked: 

"Excluding  any  knowledge  or  information  you  obtained  while  treat- 
ing the  insured,  and  judging  from  her  appearance  at  the  time  of  the 
treatment,  what  is  your  opinion  whether  she  was  a  woman  in  good 
health  and  sound  body,  and  a  woman  who  usually  enjoyed  good 
health?" 

The  refusal  of  the  court  to  permit  an  answer  to  this  question  is 
alleged  as  error.  It  was  excluded  under  section  10181,  3  Comp.  Laws 
1897.  Counsel  rely  upon  Edington  v.  Ins.  Co.,  'jy  N.  Y.  564,  where 
the  question  was  asked : 

"Excluding  any  knowledge  or  information  that  you  obtained  while 
treating  the  deceased,  and  judging  from  his  appearance  from  that 
time  until  1867,  what  is  your  opinion  as  to  whether  he  was  a  man 
in  good  health?" 

The  difference  between  the  two  cases  is  apparent.  In  the  New 
York  case,  any  information  or  knowledge  of  his  appearance  while 
the  physician  treated  him  was  not  asked  for.  The  physician  had 
seen  him  many  times  after  his  employment  had  ceased,  and  his  ap- 
pearance upon  which  his  opinion  was  based  was  expressly  limited  to 
that  period.  In  the  present  case  the  witness  was  asked  to  give  an 
opinion  based  upon  her  appearance  at  the  time  of  the  treatment.  This 
was  excluded  by  the  statute. 

Judgment  affirmed. 

The  other  Justices  concurred. 


Privileged  Communications  57 

ALFORD  V.  JOHNSON. 

I  OS  Ark.  236.     (1912) 

Frauenthal,  J.  This  is  an  appeal  from  a  judgment  declaring 
invalid  the  alleged  last  will  and  testament  of  one  W.  S.  Stroope.  The 
contestants  are  the  heirs  at  law  of  the  testator,  and  the  proponent  of 
the  will  and  chief  beneficiary  therein  is  Lorinda  Alford,  who  claims 
to  have  been  his  housekeeper,  but  who,  the  contestants  claim  was 
his  mistress.  The  contestants  sought  to  invalidate  the  will  upon  the 
grounds  (i)  that  the  testator  did  not  possess  sufficient  mental  ca- 
pacity at  the  time  of  its  execution,  and  (2)  because  it  was  obtained 
by  the  fraud  and  undue  influence  of  said  Lorinda  Alfor.  The  trial 
resulted  in  a  verdict  against  the  will.  The  proponent  now  seeks  a 
reversal  of  the  judgment  upon  the  ground  that  the  court  erred  in 
admitting  certain  testimony,  and  because  the  evidence  adduced  upon 
the  trial  of  the  case  is  insufficient  to  warrant  the  verdict  which  was 
returned. 

During  the  progress  of  the  trial,  the  contestants  introduced  as  a 
witness  one  D.  D.  Warlick,  who  is  a  minister  of  the  gospel  of  the 
Methodist  Church.  This  witness  testified  that  during  1907  he  had 
conversations  with  the  testator  in  which  he  spoke  of  his  past  life 
and  of  his  adulterations  with  said  Lorinda  Alford,  and  of  her  great 
influence  over  him.  He  also  testified  that  Stroope  was  not  a  member 
of  his  church  or  of  any  church;  that  on  one  of  these  occasions  he 
spoke  penitently  of  his  conduct  and  of  a  desire  to  join  his  church. 
The  witness  told  him,  however,  that  he  could  not  do  this  as  long 
as  he  lived  in  these  wrongful  relations  with  a  woman  not  his  wife. 
He  testified  to  other  statements  made  by  Stroope  to  him  of  his  rela- 
tions with  and  the  influence  exercised  by  Lorinda  Alford  over  him. 
The  appellant  objected  to  the  introduction  of  this  testimony,  upon 
the  ground  that  these  communications  were  privileged.  Her  objec- 
tion was  overruled,  and  exception  was  properly  saved  to  the  ruling 
of  the  court. 

It  is  contended  that  this  testimony  was  inadmissible  by  reason 
of  section  3097  of  Kirby's  Digest,  which  provides :  "No  minister  of 
the  gospel  or  priest  of  any  denomination  shall  be  compelled  to  testify 
in  relation  to  any  confession  made  to  him  in  his  professional  char- 
acter in  the  course  of  discipline  enjoined  by  the  rules  or  practice  of 
such  denomination."  The  communications  that  are  made  privileged 
by  this  statute  are  those  which  are  made  in  the  course  of  discipline 


58  Cases  on  Evidence 

by  reason  of  the  rules  of  the  religious  denomination.  If  the  com- 
munications are  made  to  one  who  happens  to  be  a  clergyman,  but 
who  does  not  sustain  to  the  communicant  that  professional  character 
or  relation,  they  are  not  privileged.  Before  the  statements  or  con- 
fessions made  to  a  minister  of  the  gospel  or  priest  of  any  denomina- 
tion can  be  held  to  be  inadmissible,  it  must  appear  from  the  evidence 
that  they  were  made  to  such  minister  or  priest  in  his  professional 
character,  and  because  enjoined  by  the  rules  or  discipline  or  practice 
of  such  religious  denomination.  As  is  said  in  Wharton  on  the  Law 
of  Evidence,  sec.  597:  "Under  these  statutes,  however,  a  communi- 
cation to  be  privileged  must  be  made  by  a  penitent  as  an  enjoined 
religious  discipline,  to  a  priest,  and  does  not  cover  a  confession  made 
to  a  clerygman  not  in  the  course  of  such  discipline."  See  also  Wig- 
more  on  Evidence,  sec.  2693 ;  Knight  v.  Lee,  80  Ind.  201 ;  State  v. 
Morgan  (Mo.)  95  S.  W.  402. 

It  does  not  appear  from  the  testimony  adduced  in  this  case  that 
the  statements  made  by  Stroope  to  Warlick  were  made  to  him  in 
any  professional  relation  to  Stroope  as  a  clergyman,  nor  was  there 
any  testimony  that  such  statements  were  made  in  the  course  of  dis- 
cipline enjoined  by  any  rules  or  practice  of  the  religious  denomina- 
tion of  which  Warlick  was  a  member.  These  communications  were 
made  to  Warlick  in  like  manner  as  to  any  individual;  and  while  it 
is  true  that  Stroope  also  spoke  to  him  relative  to  his  desire  to  become 
a  member  of  his  church,  the  communications  were  not  made  to  War- 
lick in  his  professional  character  or  by  reason  of  any  rule  or  practice 
of  that  church.  It  follows  that  the  testimony  given  by  this  witness 
was  not  inadmissible  by  reason  of  the  above  statute;  and  appellant 
did  not  object  to  the  admissibility  of  this  testimony  upon  any  other 
ground. 

Judgment  affirmed. 


REUTKEMIER  v.  NOLTE. 

i^p  Iowa  342.     (1917) 

Action  for  damages,  actual  and  exemplary,  by  the  plaintiff  against 
the  defendant  for  the  alleged  debauching  of  his  minor  daughter. 
Actual  damages  for  expenses  and  loss  of  service  are  claimed  under 
the  provisions  of  Code  Section  3^71.     The  defense  was  a  general 


Privii^^ged  Communications  59 

denial.     There  was  a  verdict   for  the  plaintiff  for  $6,500,  and  the 
defendant  appeals. 

Affirmed. 

Evans,  J.  The  facts  as  contended  by  plaintiff,  briefly  stated,  are 
that  in  September,  1912,  the  defendant,  a  man  then  21  years  of  age 
had  carnal  knowledge  of  the  plaintiff's  daughter,  Mary,  then  a  child 
only  14  years  of  age.  In  June,  1913,  she  gave  birth  to  a  child,  alleged 
to  be  the  result  of  such  intercourse.  The  plaintiff  was,  at  the  time,  a 
farmer  living  upon  his  own  farm.  He  was  a  widower,  with  three 
daughters  and  three  sons,  all  living  with  him  at  his  home.  The  evi- 
dence on  behalf  of  the  plaintiff  was  quite  abundant  to  sustain  the 
verdict.  The  appeal  is  presented  here  on  assignments  of  error  assail- 
ing certain  rulings  in  the  admission  of  testimony  and  certain  instruc- 
tions of  the  court. 

I.  The  most  important  and  doubtful  question  raised  relates  to 
an  alleged  privileged  communication,  the  claim  of  privilege  being 
based  upon  Code  Section  4608.  Plaintiff's  daughter  was  a  member 
of  the  Presbyterian  church.  In  the  month  of  March  before  her 
child  was  born,  she  was  asked  to  appear  and  did  appear  before  the 
church  session.  Such  session  consisted  of  the  pastor  and  the  three 
ruling  elders.  She  appears  to  have  confessed  her  sin,  and  to  have 
made  certain  communications  to  the  elders.  On  the  trial  of  this 
case,  the  defendant  sought  to  show  what  such  communication  was. 
It  is  claimed  for  the  defendant  that  such  communication  involved 
others,  as  well  as  himself,  and  that  at  least  it  cast  much  uncertainty 
upon  the  paternity  of  the  child.  The  plaintiff  objected  to  such  line 
of  testimony,  both  on  the  ground  that  it  was  not  binding  upon  him 
as  substantive  testimony,  and  that,  in  any  event,  it  was  a  privileged 
communication  under  the  provisions  of  the  statute.  The  first  objec- 
tion was  clearly  good  as  far  as  it  went.  The  defendant,  however, 
sought  to  lay  a  foundation  in  the  cross-examination  of  the  daughter 
Mary  as  a  witness  for  her  impeachment,  by  calling  her  attention 
to  such  alleged  communication.  Of  course,  if  the  communication  was 
not  privileged,  it  was  competent,  even  as  against  the  plaintiff,  to  offer 
the  same  for  the  purpose  of  impeachment.  On  the  other  hand,  if 
the  communication  was  privileged,  it  was*  no  more  available  to  the 
defendant  for  impeachment  purposes  than  for  any  other  purpose. 
If  it  was  privileged,  then,  under  the  view  of  the  trial  court,  it  would 
be  equally  improper  to  lay  a  pretended  foundation  for  its  introduction 
as  impeaching  testimony.  The  question,  therefore,  was  precipitated 
in  the  cross-examination  of  the  witness  Mary.    The  trial  court  exer- 


,6o  Cases  on  Evidence 

cised  its  discretion  to  stop  temporarily  the  cross-examination,  and  to 
permit  the  parties  in  the  absence  of  the  jury,  to  introduce  evidence 
of  such  facts  as  were  material  to  be  considered,  to  enable  the  court 
to  determine  whether  the  communication  in  question  was  privileged. 
It  is  not  free  from  doubt,  upon  the  record  before  us,  whether  the 
cross-examination  of  the  witness  at  this  point  was  justified  by  the 
state  of  her  testimony  at  the  time.  In  view  of  the  fact,  however, 
that  the  attention  of  both  court  and  counsel  appears  to  have  been 
concentrated  upon  the  question  of  privilege,  as  decisive  of  that  line 
of  examination,  we  are  disposed  to  meet  that  question  as  the  one  of 
•larger  merit.     Code  Section  4608  is  as  follows : 

"No  practicing  attorney,  counselor,  physician,  surgeon,  or  the  ste- 
nographer or  confidential  clerk  of  any  person,  who  obtains  such  infor- 
mation by  reason  of  his  employment,  minister  of  the  gospel  or  priest 
of  any  denomination  shall  be  allowed  in  giving  testimony,  to  disclose 
any  confidential  communication  properly  intrusted  to  him  in  his  pro- 
fessional capacity,  and  necessary  and  proper  to  enable  him  to  dis- 
charge the  functions  of  his  office  according  to  the  usual  course  of  prac- 
tice or  discipline.  Such  prohibition  shall  not  apply  to  cases  where 
the  party  in  whose  favor  the  same  is  made  waives  the  rights  con- 
ferred." 

In  applying  this  section  to  the  case  before  us,  two  questions  naturally 
arise : 

1.  Was  the  communication  a  confidential  one? 

2.  Were  the  recipients  of  such  communication  ministers  of  the 
Gospel  within  the  meaning  of  the  statute? 

As  to  the  first  question  it  is  apparent  the  communication  was  of 
such  a  nature  as  would  usually  and  naturally  be  deemed  confidential 
if  for  no  other  reason  than  that  it  involved  a  confession  of  sin  to  a 
spiritual  adviser.  We  feel  no  hesitancy  in  holding  the  affirmative  on 
this  question.  The  second  question  presents  greater  difficulty.  What 
is  a  "minister  of  the  Gospel,"  within  the  meaning  of  this  statute? 
The  law  as  such  sets  up  no  standard  or  criterion.  That  question  is 
left  wholly  to  the  recognition  of  the  "denomination."  The  word 
"minister,"  which,  in  its  original  sense,  meant  a  mere  servant,  has 
grown  in  many  directions,  and  into  much  dignity.  Few  English 
words  have  a  more  varied  meaning.  In  the  religious  world,  it  is 
often,  if  not  generally,  used  as  referring  to  a  pastor  of  the  church  and 
a  preacher  of  the  Gospel.  This  meaning,  however,  is  not  applicable 
to  all  Christian  denominations.  Some  of  them  have  no  pastors  and 
recognize  no  one  as  a  minister  in  that  sense,  and  yet  all  denominations 


Privileged  Communications  6i 

recognize  the  spiritual  authority  of  the  church,  and  provide  a  source 
of  spiritual  advice  and  discipline.  The  record  herein  contains  a  copy 
of  the  "Confession  of  Faith"  of  the  Presbyterian  church,  as  well  as 
other  standard  booklets  setting  forth  the  doctrine  and  polity  of  that 
denomination.     (Excerpts  therefrom  follow). 

To  the  foregoing,  it  may  be  added  that  the  office  of  ruling  elder 
is  perpetual,  and  no  person  can  be  divested  of  it  except  by  removal. 
These  ruling  elders  have  nothing  to  do  with  the  temporal  affairs  of 
the  church,  but  deal  wholly  with  its  spiritual  side  and  its  discipline. 
It  will  be  noted  also,  from  what  we  have  quoted,  that,  although  it 
is  required  that  the  pastor  of  the  congregation  shall  always  be  the 
moderator  of  the  session,  when  there  is  a  pastor,  yet,  if  there  be  no 
pastor,  and  it  be  impracticable  to  obtain  another  pastor,  the  ruling 
elders  are  authorized  to  conduct  the  session  without  one.  It  will  be 
noted  also  that  there  is  no  power  of  discipline  conferred  upon  the 
pastor  except  in  conjunction  with  the  ruling  elders. 

Turning  now  to  the  statute  itself,  the  fact  that  it  lays  its  inhibition 
upon  stenographers  and  confidential  clerks  "of  any  person  who  ob- 
tains such  information  by  reason  of  his  employment,"  indicates  a 
rather  broad  scope  of  the  statute,  and  indicates  the  legislative  intent 
that  the  privileged  communication  should  be  protected  also  against 
divulgence  by  those  persons,  whose  duty  and  relation  to  the  chief 
recipient  were  such  as  to  enable  them  to  know  the  communication. 
The  privilege  of  the  statute  purports  to  be  applicable  to  every  Christian 
denomination,  of  whatever  polity.  Under  the  polity  of  the  Presby- 
terian denomination,  this  privilege  cannot  be  applicable  to  it  unless 
it  be  true  that  the  ruling  elders  are  "ministers  of  the  Gospel,"  within 
the  meaning  of  the  statute.  We  find  they  are  such  within  the  con- 
templation of  the  Presbyterian  Confession  of  Faith,  and  therefore 
they  are  such  within  the  meaning  of  the  statute.  We  hold  that  the 
trial  court  ruled  correctly  at  this  point. 


63  Cases  on  Evidence 

COOK  et  al.  v.  CASTNER  et  aL 

JORDAN  et  al.  v.  FARREN  et  al. 

6s  Mass.  266.     (1852) 

These  were  two  cross-examinations  between  the  same  parties,  and 
arising  out  of  the  same  transaction. 

The  first  was  an  action  of  assumpsit  with  the  money  counts  to 
recover  back  the  purchase-money  of  the  barque  Averon,  sold  by  the 
defendants  to  the  plaintiffs. 

At  the  sale  there  was  no  warranty,  but  the  sale  was  made  under 
representations  as  to  the  condition  of  the  timbers  and  fastenings  of 
the  vessel.  After  the  sale,  the  plaintiffs  had  the  vessel  examined, 
when  they  found  some  of  the  timbers  unsound;  they  attempted  to 
repair  these,  and,  in  doing  so,  made  further  discoveries  as  to  the  con- 
dition of  the  timbers  and  fastenings,  and  immediately  offered  to 
return  the  vessel  to  the  defendants. 

At  the  trial,  in  the  court  of  common  pleas,  the  plaintiffs  intro- 
duced evidence  that,  with  the  defendants'  knowledge,  they  bought 
on  the  faith  of  these  representations;  that  the  representations  were 
materially  false,  and  were  known  to  be  so  by  the  defendants  at  the 
time  they  were  made. 

The  jury  found  a  verdict  for  the  defendants,  and  the  plaintiffs 
moved  for  a  new  trial,  for  the  following  reasons,  to  wit: 

1st.  Because  Mr.  Ballard,  one  of  the  jurors  by  whom  the  verdict 
therein  was  rendered,  had,  prior  to  the  time  of  the  trial,  examined 
the  barque  Averon,  the  subject  of  that  suit,  about  the  time  of  her 
abandonment  by  the  defendants,  and  had  then  formed  an  opinion  of 
the  condition  of  the  vessel  at  the  time  of  her  sale  to  the  defendants, 
and  was  not  an  unprejudiced  and  unbiased  juror,  and  was  thereby 
rendered  incompetent  as  a  juror  in  the  cause. 

2nd.  Because  Ballard,  after  the  cause  was  committed  to  the  jury, 
and  before  the  verdict,  stated  to  his  fellow-jurors,  not  in  the  presence 
of  the  judge,  and  not  as  a  witness  under  oath  that  he  had  "examined 
the  vessel  and  knew  all  about  her;  that  she  was  more  rotten  than  she 
was  proved  to  be  at  the  trial,  and  that  she  was  rotten  throughout; 
that  he  would  bet  five  hundred  dollars  that,  if  she  were  opened  now, 
it  would  be  found  that  she  was  rotten  in  places  where  one  of  the 
plaintiffs'  deponents  said  he  had  found  her  sound  when  he  repaired 
her;  for  he,  Ballard,  saw  rot  in  those  places  when  he  looked  at  her." 


pRiviivEGED  Communications  63 

All  which  matters  and  things  were  unknown  to  the  plaintiffs  until 
after  the  verdict  was  rendered ;  whereby  the  plaintiffs  were  prejudiced, 
and  suffered  manifest  wrong  and  injury  by  the  improper  conduct  of 
the  juror.  And  the  plaintiffs  prayed  that  the  verdict  in  the  cause 
might  be  set  aside,  and  a  new  trial  ordered. 

On  the  hearing  of  this  motion,  the  plaintiffs  offered  to  prove,  by 
Ballard  and  by  the  foreman  of  the  jury,  the  truth  of  the  facts  stated 
in  the  motion  for  a  new  trial,  in  respect  of  Ballard ;  but  the  presiding 
judge  ruled  that  the  testimony  of  these  witnesses  could  not  be  re- 
ceived; that  the  jurors  were  not  competent  witnesses  to  prove  the 
facts  stated  in  the  plaintiffs'  motion  for  a  new  trial,  it  appearing  that 
the  plaintiffs  proposed  proving  that  these  directions  were  made  while 
the  jury  were  together,  deliberating  upon  the  verdict  they  should 
render. 

To  this  ruling  the  plaintiffs  excepted. 

Shaw,  C.  J.  These  two  cases,  as  we  understand,  are  cross  actions 
between  the  same  parties,  although  the  names  and  titles  of  the  causes 
are  different,  being  controversies  arising  out  of  the  same  transaction, 
the  purchase  and  sale  of  a  vessel,  called  the  barque  Averon,  in  which 
Castner  and  Jordan  were  the  vendors,  and  Cook  and  Farren  the 
purchasers.  They  were  both  tried  together,  and  went  to  the  same 
jury,  and  verdicts  in  both  were  rendered  at  the  same  time. 

As  to  the  juror,  the  offer  of  the  plaintiffs  was  only  to  show  what 
took  place  in  the  jury-room  at  the  time  the  jury 'were  in  deliberation 
on  their  verdict.  It  was,  that  the  juror  stated  that  he  had  examined 
the  vessel  before  the  trial,  that  he  was  of  opinion  that  she  was  very 
rotten,  and  so  stated  to  the  rest  of  the  jury. 

We  think  the  judge  was  right  in  rejecting  evidence  of  the  alleged 
partiality  and  misconduct  of  a  juror  in  the  jury-room,  by  the  testi- 
mony of  the  juror  himself,  or  of  the  other  jurors.  It  is  a  rule,  founded 
upon  obvious  considerations  of  public  policy,  and  it  is  important  that 
it  should  be  adhered  to  and  not  broken  in  upon  to  afford  relief  in 
supposed  hard  cases. 

A  verdict,  as  the  name  imports  {veredictum)  is  taken,  in  theory 
of  law,  to  be  absolute  truth,  and  it  is  important  that  it  be  so  regarded. 
All  communications  among  the  jurors  are  confidential;  they  are  in- 
tended to  be  secret,  and  it  is  best  they  should  remain  so.  It  is  very 
probable,  indeed  it  is  almost  inevitable,  that  many  things  should  be 
said  and  views  expressed,  by  individual  jurors,  which  not  only  have 


64  Casks  on  Evidence 

no  influence  on  others,  l)Ut  which  they  themselves  do  not  ultimately 
adhere  to  and  act  upon. 

Judgment  in  each  case  on  the  verdict  for  the  defendants. 


WILKERSON  V.  STATE. 
pi  Ga.  72p;  S.  E.  ppo.     (1893) 

Wilkerson  was  indicted  for  murder,  and  was  found  guilty  of  vol- 
untary manslaughter.  His  motion  for  a  new  trial  was  overruled,  and 
he  excepted. 

Lumpkin,  Justice.  On  the  trial,  the  accused  offered  in  evidence, 
and  also  offered  to  read  as  a  part  of  his  statement,  a  letter  which  had 
been  written  by  Stephens  to  his  wife,  and  which  she  had  voluntarily 
delivered  to  Wilkerson  some  time  before  the  homicide.  This  letter 
contained  intimations  that  the  writer  knew  of  the  relations  existing 
between  his  wife  and  Wilkerson,  and  also  a  threat  against  the  latter. 
The  court  rightly  rejected  the  letter,  and  refused  to  allow  it  to  be 
read  to  the  jury.  Section  3797  of  the  Code  declared  that  communica- 
tions between  husband  and  wife  are,  from  public  policy,  excluded  as 
evidence.  Mrs.  Stephens  would  not,  for  this  reason,  have  been  per- 
mitted, as  a  witness  upon  the  stand,  to  testify  to  communications  from 
her  husband  to  herself;  or  to  read  to  the  jury  a  letter  which  he  had 
written  to  her.  We  are  therefore  decidedly  of  the  opinion  that  the 
same  result  cannot  be  indirectly  accomplished  by  her  voluntarily  de- 
livering a  letter  of  this  kind  to  another  person.  We  are  aware  that 
there  are  respectable  authorities  holding  that  a  privileged  oral  com- 
munication may  be  given  in  evidence  by  one  who  overheard  it,  though 
an  eavesdropper;  or  that  a  privileged  written  communication,  pur- 
loined from  the  proper  custodian  of  it,  may  be  received  in  evidence. 
In  such  instances,  however,  the  parties  to  the  privileged  communica- 
tion do  not  themselves  successfully  make  and  keep  it  private;  but 
where  this  result  is  accomplished,  the  law  will  not  permit  either  of 
the  parties,  directly  or  indirectly,  to  violate  the  confidence  of  the 
other.  In  respect  to  documents,  there  is  a  difference  between  those 
which  are  confidential  in  their  own  nature,  such  as  letters  between 
husband  and  wife  and  those  which  become  confidential  by  custody, 
such  as  papers  deposited  by  a  client  with  his  attorney.  The  law,  for 
reasons  of  its  own,  desires  that  all  communications  between  husband 


Privileged  Communications  65 

and  wife  shall  be  absolutely  free  and  untrammeled,  and  that  each  may 
say  or  write  whatsoever  he  or  she  pleases  to  the  other,  with  the  abso- 
lute assurance  that  the  one  receiving  the  communication  will  neither 
be  compelled  nor  permitted  to  disclose  it.  We  therefore  think  it  the 
wiser  and  better  course  to  adhere  strictly  to  the  declared  policy  of  our 
law,  and  to  hold  that  this  letter  was  properly  rejected,  however  im- 
portant it  may  be  in  the  determination  of  this  case. 

Judgment  reversed  on  other  grounds. 


COMMONWEALTH  v.  GRIFFIN. 
no  Mass.  181.     (1872) 

Indictment  for  manslaughter.  At  the  trial,  before  Rockwell, 
J.,  the  Commonwealth  offered  to  prove  a  conversation  as  to  the 
alleged  homicide  between  the  defendant  and  his  wife,  while  confined 
in  jail,  from  the  testimony  of  two  officers  who  concealed  themselves 
in  the  jail  for  the  purpose  of  listening  to  the  conversation,  without 
the  defendant  and  his  wife  knowing  that  the  witnesses  or  any  other 
persons  were  in  hearing  of  them.  The  defendant  objected  to  the  ad- 
mission of  this  testimony,  but  the  judge  admitted  it.  The  jury  re- 
turned a  verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

By  the  Court.  There  is  no  rule  of  law  requiring  that  third  per- 
sons who  hear  a  private  conversation  between  husband  and  wife  shajl 
be  restrained  from  introducing  it  in  their  testimony. 

Exceptions  overruled. 


COMMONWEALTH  v.  CRONIN. 
185  Mass.  pd.     (1904) 

Indictment,  found  on  May  12,  1902,  for  an  assault  with  intent 
to  murder. 

At  the  trial  in  the  Superior  Court  before  Harris,  J.,  the  defense 
relied  upon  was  insanity  caused  by  epilepsy.  It  appeared  that  after 
committing  the  assault  in  question  the  defendant,  being  pursued  by 
persons  who  had  come  up,  ran  to  a  pond  and  threw  himself  in,  and 


66  ■      Cases  on  Evidence 

was  rescued  from  the  pond  in  an  unconscious  condition.  The  de- 
fendant's wife  testified  to  an  illness  of  the  defendant  alleged  to  be 
epilepsy  and  was  allowed  without  objection  to  testify  in  regard  to 
the  condition  of  the  defendant  as  manifested  by  his  symptoms.  The 
defendant  then  offered  to  show  by  his  wife  that  immediately  upon 
coming  out  of  this  attack  the  defendant  declared  that  he  would  drown 
himself.  The  judge  excluded  this  evidence  solely  upon  the  ground 
that  it  was  a  private  conversation  between  husband  and  wife.  The 
jury  returned  a  verdict  of  guilty ;  and  the  defendant  alleged  exceptions. 
Barker,  J.  The  defendant's  statement  that  he  would  drown  him- 
self was  made  in  private  to  his  wife.  It  was  relevant  to  his  condition 
of  mind,  but  was  made  incompetent  and  inadmissible  as  evidence  in 
his  favor  by  the  prohibition  of  the  statute,  "Neither  husband  nor  wife 
shall  testify  as  to  private  conversations  with  each  other."  R.  L.  c. 
175,  sec.  20,  cl.  I.  Fuller  v.  Fuller,  177  Mass.  184,  and  cases  cited. 
It  did  not  come  within  the  reason  of  the  exception  which  allows  abus- 
ive language  addressed  by  a  husband  in  private  to  his  wife  to  be  given 
in  evidence  to  show  abusive  treatment.  See  French  v,  French,  14 
Gray,  186. 

Exceptions  overruled.  ' 


THE  STATE  v.  THOMAS, 
pp  Mo.  233.     (i88p) 

Brace,  J.  At  the  March  term,  1888,  of  the  Criminal  Court  of 
Saline  county,  the  defendant  was  indicted  for  murder  in  the  first 
degree.  The  indictment,  in  two  counts,  charges  him  with  having 
Jtnurdered  John  Lowry  on  the  eleventh  of  October,  1884,  in  said 
county.  He  was  arraigned,  plead  not  guilty,  and  the  case  was  con- 
tinued until  the  September  term,  when  it  .was  set  down  for  trial  on 
the  second  day  of  January,  1889,  at  which  time  he  was  tried,  found 
guilty  of  murder  in  the  first  degree,  and  sentenced  to  be  hanged.  His 
motion  for  new  trial,  and  in  arrest  of  judgment,  having  been  over- 
ruled, he  appeals,  the  Circuit  Court  staying  the  execution  until  his 
appeal  be  heard. 

The  admission  of  the  minutes  of  the  purported  evidence  of  the 
witness,  Leta  Thomas,  before  the  grand  jury,  written  by  one  of  the 
grand  jurors,  and  which  she  signed  at  the  request  of  the  foreman, 
was  error.     The  ancient  rules   excluding  the  evidence  of  a  grand 


Privileged  Communications  67 

juror  as  to  any  matter  that  transpired  in  the  jury  room,  while  the 
grand  jury  was  in  secret  session  in  the  discharge  of  its  duties,  founded 
upon  considerations  of  public  policy,  the  nature  of  the  tribunal,  and 
a  tender  regard  for  a  juror's  conscience,  has  been  much  relaxed  in 
modern  practice  in  those  states  in  which  the  limitations  upon  such 
disclosures  are  measured  only  by  the  oath  of  secrecy  which  the  grand 
juror  is  required  to  take,  notable  illustrations  of  which  will  be  found 
in  the  following  cases,  as  well  as  cogent  reasons  therefor:  Common- 
wealth V.  Hill,  II  Cush.  137;  Commonwealth  v.  Mead,  12  Gray,  167; 
Gordon  v.  Commonwealth,  92  Pa.  St.  216;  State  v.  Broughton,  7  Ire. 
96;  Burdick  v.  Hunt,  43  Ind.  381;  Bressler  v.  People,  117  111.  422, 
to  which  many  others  might  be  added. 

In  this  state,  the  matter  is  regulated  by  statute.  Section  1774,  Re- 
vised Statutes,  1879,  prescribes  the  oath  which  a  grand  juror  is 
required  to  take,  which  is  in  the  usual  and  ancient  form. 

Section  1793  provides  that:  "No  grand  juror  shall  disclose  any 
evidence  given  before  the  grand  jury,  nor  the  name  of  any  witness 
who  appeared  before  them,  except  when  lawfully  required  to  testify 
as  a  witness  in  relation  thereto."  Section  1791  provides  that:  "Mem- 
bers of  the  grand  jury  may  be  required  by  any  court  to  testify 
whether  the  testimony  of  a  witness  examined  before  such  jury  is  con- 
sistent with,  or  different  from,  the  evidence  given  by  such  witness 
before  such  court,  and  they  may  also  be  required  to  disclose  the  tes- 
timony given  before  them  by  any  person  upon  a  complaint  against 
such  person  for  perjury,  upon  his  trial  for  such  offense." 

The  evil  sought  to  be  remedied,  by  this  legislation,  was  the  im- 
munity, which  witnesses  might  enjoy  under  the  old  rule,  from  prose- 
cution for  perjury  for  swearing  falsely  before  the  grand  jury,  and 
from  the  discredit  which  would  follow  upon  the  deliverance,  on  trial, 
in  open  court,  of  evidence  different  from  that  delivered  under  oath 
before  the  grand  jury.  In  other  words,  to  remove,  so  far  as  was 
consistent  with  public  policy,  the  temptation  to  false  swearing  before 
the  grand  jury.  Under  this  statute,  it  was  held  in  Twindle  v.  Nichols, 
20  Mo.  326,  in  an  action  for  slander  for  a  charge  of  false  swearing 
by  plaintifl^'s  wife  before  the  grand  jury,  that  a  grand  juror  could 
not  be  permitted  to  testify  what  the  wife  testified  to  before  the  grand 
jury.  And  in  Bean  v.  Link,  27  Mo.  261,  which  was  an  action  for 
maHcious  prosecution,  it  was  held  that  a  grand  juror  could  not  be 
permitted  to  testify  that  defendants  went  before  the  grand  jury,  and 
testified  as  witnesses.  In  that  case.  Judge  Scott,  citing  the  former 
case,  says:    "This  opinion  is  founded  on  the  statute,  and  the  statute 


68  Cases  on  Evidence 

itself  has  its  origin  in  principles  of  the  common  law.  Grand  juries 
are  now,  and  have  always  been,  sworn  to  secrecy.  This  oath  re- 
strained them  from  disclosing  the  evidence  given  before  them.  The 
clerk  of  the  grand  jury  inquest  could  not  be  sworn  as  to  matters 
that  transpired  before  it.  These  considerations  show  that  there  is 
no  reason  in  law  for  relaxing  the  force  of  the  statute  in  relation 
to  this  subject."  And  in  the  former  case,  it  was  said :  "These 
provisions  of  our  statute  concerning  secrecy  of  grand  jurors  have 
their  origin  in  the  common  law.  Any  person  who  may  be  present 
on  the  occasion  is  bound  not  to  disclose  what  may  transpire,  and  the 
jurors,  themselves,  are,  by  the  terms  of  their  oath,  laid  under  the 
same  obligations." 

The  extent,  to  which  these  common-law  rules  of  exclusion  have 
been  relaxed,  is  to  be  measured  by  the  terms  of  the  statute,  and 
extends  only  so  far  as,  first,  to  permit  a  grand  juror,  who  has  heard 
a  witness  testify  before  the  grand  jury,  to  give  evidence  of  what  that 
witness  testified  to,  upon  a  complaint  against  such  witness  for  having 
committed  perjury  in  such  testimony,  or  upon  his  trial  for  such  per- 
jury, and,  second,  when  a  witness,  who  has  testified  before  the  grand 
jury,  is  being  examined  in  the  trial  court,  in  regard  to  the  same  mat- 
ter and  has  testified  thereto,  and  it  is  sought  to  impeach  his  evidence 
(after  laying  a  proper  foundation  therefor)  by  showing  that  he  tes- 
tified differently  before  the  grand  jury.  In  order  that  it  may  be 
determined  whether  the  evidence  given  before  such  jury  is  consistent 
with,  or  diflFerent  from,  that  given  by  such  witness  before  such  court, 
a  grand  juror  may  be  required,  as  a  witness  on  oath,  to  disclose  the 
testimony  given  by  such  witness  before  the  grand  jury.  The  grand 
juror  cannot  be  made  the  judge  as  to  whether  the  testimony  of  such 
witness  is  consistent  or  inconsistent.  He  can  only  testify  as  to  what 
the  evidence  of  the  witness  was  before  the  grand  jury.  It  is  for  the 
traverse  jury  to  determine  the  question  of  consistency  or  inconsistency, 
and  give  credit  accordingly.  And,  when  the  testimony  is  thus  dis- 
closed under  the  solemn  sanction  of  the  juror's  oath,  according  to  the 
best  of  his  recollection,  that  recollection  may  be  tested  by  cross-exam- 
ination. The  minutes  of  the  evidence  kept  by  one  of  their  number, 
unsanctioned  by  the  oath  of  anybody,  cannot  be  made  a  substitute  for 
this  fair,  just  and  orderly  way  of  getting  at  the  evidence  that  was 
actually  given  before  the  grand  jury. 

While  the  statute  permits  "every  grand  jury  to  appoint  one  of 
their  number  to  be  clerk  thereof,  to  preserve  minutes  of  their  pro- 
ceedings and  of  the  evidence  given  before  them,  which  minutes  shall 


PriviIvEged  Communications  69 

be  given  to  the  prosecuting  attorney"  (section  1780,  supra),  it  has 
nowhere  authorized  the  admission  of  these  minutes  as  evidence,  any- 
where, or  for  any  purpose.  They  are  not  required  to  be  signed, 
and  not  sworn  to  by  anybody.  They  are  not  the  statement,  depo- 
sition or  affidavit  of  the  witness,  but  simply  a  memorandum,  by  which 
perhaps,  a  grand  juror's  memory  might  be  refreshed,  but  upon  which 
could  not  be  shifted  the  responsibility  of  the  juror's  oath  as  to  what 
the  witness  did  actually  testify.  The  juror,  who  wrote  the  minutes 
in  this  case,  could  not  swear  to  what  the  witness  testified  to  before 
the  grand  jury,  and  does  not  know  whether  she  was  ever  asked 
whether  it  was  her  statement,  when  it  was  read  to  her.  She  signed 
it  because  the  foreman  told  her  to.  He  had  no  authority  to  require 
her  signature.  It  was  simply  the  ex  parte,  unsworn  minute  of  the 
juror,  who  wrote  it,  of  what  he  thought  at  the  time  was  the  sub- 
stance of  her  testimony,  but  which  he  could  not  verify  by  his  oath 
when  called  upon  to  testify. 

In  Iowa,  where,  under  the  statute,  a  grand  juror  may  be  permitted 
to  disclose  the  evidence  of  a  witness  before  the  grand  jury  under 
the  same  circumstances  as  with  us,  it  was  ruled  that  the  "minutes"  of 
such  witness'  testimony  are  inadmissible.  State  v.  Hayden,  45  Iowa, 
II.  The  learned  judge,  delivering  the  opinion,  remarked:  "It  is  the 
duty  of  the  clerk  of  the  grand  jury  to  take  and  preserve  these  minutes 
of  the  proceedings  and  of  the  evidence  given  before  it.  The  witness 
is  in  no  way  connected  with  the  act  of  taking  these  minutes  of  his 
testimony,  they  are  not  required  to  be  read  over  to  him,  nor  to  be 
signed  by  him.  UnHke  a  deposition  or  affidavit,  they  do  not  pur- 
port to  give  statements  of  facts,  in  full,  but  what  the  law  requires, 
mere  minutes.  They  are  often  taken  down  by  persons  wholly  inex- 
perienced in  reducing  the  language  of  others  to  writing.  A  long 
experience  upon  the  district  bench  has  enabled  the  writer  hereof  to 
observe,  that  the  evidence  taken  before  grand  juries  is  often  of  the 
most  indefinite  and  uncertain  character,  and,  if  used  as  the  means  of 
impeaching  witnesses,  would  lead  to  the  grossest  injustice  to  witnesses 
and  tend  to  defeat  a  proper  administration  of  justice." 

For  such  prejudicial  error  the  judgment  ought  and  must  be  re- 
versed, and  the  cause  remanded,  for  a  new  trial.  It  is  accordingly  so 
ordered.    All  concur;  Barclay,  J.,  in  the  result. 


70  Cases  on  Evidence 

JONES  V.  REILLY. 
ir4  N.  Y.  97.    (1903) 

Cui,i,EN,  J.  The  plaintiffs,  claiming  to  be  the  landlords  instituted 
summary  proceedings  in  a  District  Court  in  the  city  of  New  York 
to  dispossess  one  Andrew  Henderson  from  certain  premises  in  said 
city  for  non-payment  of  rent. 

On  the  trial  the  plaintiffs  relied  exclusively  on  the  claim  that  the 
defendants'  ancestor  was  in  possession  of  the  premises  under  a  lease 
from  them  and  as  their  tenant.  This  relation  if  established  was  suffi- 
cient to  entitle  them  to  a  recovery.  "No  proof  of  title  is  required 
in  this  action  when  it  is  brought  by  a  landlord,  since  if  a  tenant  has 
once  recognized  the  title  of  the  plaintiff  and  treated  him  as  his  land- 
lord by  accepting  a  lease  from  him  or  the  like,  he  is  precluded 
from  showing  that  the  plaintiff  had  no  title  at  the  time  the  lease  was 
granted,  and  that  whether  the  action  be  debt,  assumpsit,  covenant 
or  ejectment."  (2  Taylor  Landlord  &  Tenant,  sec.  705 ;  see  Sedg- 
wick &  Wait  Title  to  Land,  sec.  351 ;  Ingraham  v.  Baldwin,  9  N.  Y. 
45.)  To  show  the  relation  between  the  parties  the  plaintiffs  called 
as  a  witness  the  counsel  for  the  defendants  on  whom  they  had  pre- 
viously served  a  subpoena  duces  tecum  and  asked  him  if  he  had  in 
his  possession  a  lease  from  Annie  E.  Jones  to  Andrew  Henderson. 
Over  the  objection  and  exception  of  the  appellants,  who  claimed  that 
the  inquiry  was  an  invasion  of  the  privilege  of  counsel,  the  witness, 
in  compliance  with  the  direction  of  the  court,  answered  that  he  had. 
Under  the  further  order  of  the  court,  made  against  like  objection  and 
exception,  the  witness  was  directed  to  produce  the  instrument,  the 
signature  to  which  by  said  Henderson  was  proved  and  the  instrument 
put  in  evidence.  It  is  claimed  that  this  action  of  the  court  was  erro- 
neous and  that  the  counsel  could  not  be  compelled  to  produce  his 
client's  papers.  Such  seems  to  have  been  the  rule  before  the  enact- 
ment of  the  statutory  provisions  by  which  parties  to  an  action  were 
made  competent  witnesses  and  compellable  at  the  instance  of  an 
adverse  party  to  testify  the  same  as  other  witnesses.  The  privilege 
was  that  of  the  client,  not  of  the  counsel,  and  when  by  change  in 
the  law  the  client  could  be  compelled  by  subpoena  to  produce  docu- 
ments in  his  possession,  the  rule  that  the  attorney  could  not  be  forced 
to  produce  them  when  in  his  possession  necessarily  fell.  The  subject 
is  elaborately  discussed  by  the  late  Court  of  Common  Pleas  of  the 
county  of  New  York  in  Mitchell's  Case  (12  Abb.  Pr.  249),  and  in 


Privileged  G)mmunications  71 

the  conclusion  there  reached,  that  an  attorney  or  counsel  is  obliged 
in  answer  to  a  subpoena  to  produce  any  instruments  of  his  client 
which  the  latter  could  have  been  compelled  to  produce,  we  entirely  con- 
cur. (See,  also.  People  ex  rel.  Mitchell  v.  Sheriif  of  New  York,  29 
Barb.  622.)  * 

Judgment  reversed  on  another  ground. 


GABRIEL  V.  McMULLIN. 
12/  Iowa  426.     (191 5) 


Suit  to  recover  damages  for  an  alleged  slander  and  for  a  malicious 
prosecution.  There  was  a  trial  to  a  jury,  and  a  verdict  and  judgment 
for  the  plaintiff.    The  defendant  appeals.    Reversed. 

Sherwin,  C.  J.  The  plaintiff  had  been  the  defendant's  house- 
keeper during  her  absence  from  home,  and  on  her  return,  and  after 
the  plaintiff  had  left,  she  discovered  that  certain  personal  property 
had  been  taken  from  the  house,  whereupon  she  laid  the  matter  before 
the  county  attorney  of  Mahaska  county,  Mr.  J.  A.  Devitt,  stated  the 
facts  to  him  and  her  belief  that  the  property  had  been  taken  by  the 
plaintiff,  and  asked  him  to  have  her  arrested  and  prosecuted  for  the 
crime.  Mr.  Devitt,  after  several  consultations  with  the  defendant,  had 
an  information  filed  by  a  constable,  and  the  plaintiff's  arrest  followed. 
The  prosecution  was  thereafter  dropped  for  want  of  sufficient  evidence 
to  warrant  further  proceedings. 

On  the  trial  of  this  case,  Mr.  Devitt  was  called  as  a  witness  for  the 
plaintiff,  and,  over  the  defendant's  objection  that  her  statements  to 
him  were  privileged,  and  in  reality  against  his  protest,  he  was  com- 
pelled to  testify  to  the  entire  conversation  between  himself  and  the 
defendant  relative  to  the  charge  against  the  plaintiff.  It  was  preju- 
dicial error  to  receive  this  testimony. 

But  aside  from  the  statute,  we  think  the  rule  of  exclusion  should 
be  applied  to  all  matters  concerning  the  administration  of  justice,  on 
the  ground  of  public  policy.  A  county  attorney  is  an  officer  whose 
duty  it  is  to  investigate  crime  and  to  prosecute  therefor,  not  in  the 
interest  of  the  individual  who  may  have  suffered,  but  for  the  good 
of  the  state;  and  it  is  very  clear  to  us  that  it  is  not  only  the  privilege, 
but  the  duty,  of  every  citizen  who  knows  of  facts  tending  to  show 
the  commission  of  a  crime,  to  communicate  such  information  to  the 


72  Cases  on  Evidence 

public  officer  whose  duty  it  is  to  investigate  the  matter  and  to  com- 
mence a  criminal  prosecution  if  a  crime  has  been  committed.  Any 
other  rule  would  hamper  the  administration  of  justice.  A  party  hav- 
ing knowledge  of  facts  tending  to  show  that  a  crime  has  been  com- 
mitted will  hesitate  to  lay  such  facts  before  the  proper  officer  if  the 
information  thus  given  may  be  made  the  basis  of  an  action  for  dam- 
ages against  him. 

The  judgment  is  reversed. 


THOMPSON  V.  GERMAN  VALLEY  R.  CO. 
22  N.  J.  Eq.  III.     (1871) 

In  this  case,  a  subpoena  duces  tecum  had  been  served  upon  his 
Excellency  the  Governor,  commanding  him  by  his  individual  name, 
to  appear  and  testify  before  an  examiner  of  this  court,  and  to  bring 
with  him  an  engrossed  copy  of  a  private  statute  which  had  passed 
both  houses  of  the  legislature  on  the  30th  of  March,  1871,  and  been 
sent  to  him,  as  Governor,  for  his  approval.  The  Governor  declined 
to  obey  this  subpoena,  and  sent  to  this  court  a  letter  now  on  file, 
stating  that  he  did  not  decline  out  of  any  disrespect  to  the  court  or 
to  the  law,  but  because  he  thought  his  duty  required  of  him  not  to 
appear  or  to  produce  the  paper  required,  or  to  submit  his  official  acts, 
as  Governor,  to  the  scrutiny  of  any  court.  An  order  was  granted 
that  the  Governor  should  show  cause  why  he  should  not  appear  and 
testify,  and  produce  the  copy  of  the  act. 

The  Chancellor. 

The  subpoena  was  directed  to  the  Governor,  by  his  individual  name, 
and  not  as  Governor.  Every  person,  whatever  his  office  or  dignity, 
is  bound  to  appear  and  testify  in  courts  of  justice  when  required  to 
do  so  by  proper  process,  unless  he  has  a  lawful  excuse.  The  official 
engagements  and  duties  of  the  higher  officers  of  government  may 
be,  and  in  many  cases,  are,  a  sufficient  excuse.  The  dignity  of  the 
office,  or  the  mere  fact  of  official  position,  is  not  of  itself  an  excuse, 
and  whether  the  official  engagements  are  sufficient,  must  be  deter- 
mined from  the  circumstances  of  each  case.  Whether  the  highest 
officer  in  the  government  or  state  will  be  compelled  to  produce  in 
court  any  paper  or  document  in  his  possession,  is  a  different  question. 
And  the  rule  adopted  in  such  cases  is,  that  he  will  be  allowed  to  with- 


*•  Privileged  Communications  73 

hold  any  paper  or  document  in  his  possession,  or  any  part  of  it,  if, 
in  his  opinion,  his  official  duty  requires  him  to  do  so.  These  were  the 
rules  adopted  by  Chief  Justice  Marshall  in  the  trial  of  Aaron  Burr. 
He  allowed  a  subpoena  duces  tecum  to  President  Jefferson  and  held 
that  he  was  bound  to  appear,  but  that  he  should  be  allowed  to  keep 
back  any  document,  or  part  of  a  document,  which  he  thought  ought 
not  to  be  produced,     i  Burr's  Trial,  182;  2  Ibid.  535-6. 

If  the  Governor,  without  sufficient  or  lawful  reasons,  refuses  to 
appear  and  testify,  he  is,  like  all  other  citizens,  liable  to  respond  in 
damages  to  any  party  injured  by  his  refusal. 

It  is  possible  that  there  may  be  cases  where  courts,  from  the  con- 
duct of  an  Executive,  might  deem  it  proper  to  proceed  against  him 
for  contempt.  But  this  is  not  one  of  them,  and  the  party  here  must 
be  left  to  his  civil  remedy. 


APPEAL  of  JOHN  F.  HARTRANFT  et  al. 
85  Pa.  433-     (1877)       , 

This  was  the  appeal  of  John  F.  Hartranft,  Governor  of  the  Com- 
monwealth ;  M.  S.  Quay,  Secretary  of  the  Commonwealth ;  James  W. 
Latta,  Adjutant-General  of  the  Commonwealth;  General  R.  M.  Brin- 
ton,  and  Major  A.  Wilson  Norris,  from  the  order  of  the  Court  of 
Quarter  Sessions  of  the  Peace  of  Allegheny  county,  allowing  and 
directing  attachments  to  issue  against  them  in  the  matter  of  the  in- 
vestigation of  the  grand  jury  into  riots  at  Pittsburgh,  of  July  21st 
and  22nd,   1877. 

Mr.  Justice  Gordon.  For  the  purposes  of  this  case,  however,  we 
may  admit  the  regularity  of  this  subpoena  and  that,  upon  an  ordinary 
citizen,  it  would  have  been  binding  and  obligatory,  for  we  regard 
the  question  of  the  liability  of  .the  appellants  to  attachment,  in  any 
event,  as  the  prime  one  of  this  case.  In  order  to  resolve  this,  we  must 
first  understand  who  the  persons  are,  against  whom  the  court  has 
directed  its  attachment  and  for  what  purpose  they  have  been  sub- 
poenaed. They  are  the  Governor  of  Pennsylvania,  the  Secretary  of 
the  Commonwealth,  the  Adjutant-General,  chief  officers  of  the  Ex- 
ecutive Department  of  the  state  government,  and  two  officers  of  the 
National  Guard;  the  latter  subordinates  acting  under  the  orders  of 
the  former.    The  purpose,  for  which  these  officers  are  subpoenaed,  is. 


74  Cases  on  Evidence 

that  the  grand  jury  may  be  put  into  possession  of  any  information 
they  may  be  possessed  of,  or  that  may  be  within  the  power  of  their 
several  departments,  concerning  the  military  or  other  means  used  by 
them  in  the  suppression  of  the  late  riots  in  the  city  of  Pittsburgh. 
It  will  be  observed  that  these  persons  are  subpoenaed  for  the  purpose 
of  compelling  a  revelation  of  such  things  as  have  come  to  their 
knowledge  in  their  official  capacities,  and  which  strictly  belong  to  their 
several  departments  as  officers  of  the  Commonwealth.  This  is  clearly 
set  out  in  the  answer,  by  the  Attorney-General,  to  the  application  for 
the  attachment,  and  there  has  been  no  denial  thereof  upon  the  argu- 
ment before  us.  In  order  to  simplify  matters,  we  may  treat  this  case 
just  as  though  the  process,  first  and  last,  were  against  the  Governor 
alone;  for  if  he  is  exempt  from  attachment  because  of  his  privilege, 
his  immunity  protects  his  subordinates  and  agents.  The  general 
principle  is,  that  whenever  the  law  vests  any  person  with  the  power 
to  do  an  act,  at  the  same  time  constituting  him  a  judge  of  the  evi- 
dence on  which  the  act  may  be  done,  and  contemplating  the  employ- 
ment of  agents  through  whom  the  act  is  to  be  accomplished,  such 
person  is  clothed  with  discretionary  powers,  and  is  quoad  hoc  a  judge. 
His  mandates  to  his  legal  agents,  on  his  declaring  the  event  to  have 
happened,  will  be  a  protection  to  those  agents;  Vanderheyden  v. 
Young,  II  Johns.  158,  per  Spencer,  J. 

It  follows,  if  the  Governor,  as  supreme  executive,  and  as  com- 
mander in  chief  of  the  army  of  the  Commonwealth,  is  charged  with 
the  duty  of  suppressing  domestic  insurrections,  he  must  be  the  judge 
of  the  necessity  requiring  the  exercise  of  the  powers  with  which  he 
is  clothed,  and  his  subordinates,  who  are  employed  to  render  these 
powers  efficient  and  to  produce  the  legitimate  results  of  their  exercise, 
can  be  accountable  to  none  but  him.  In  like  manner,  if  he  is  con- . 
stituted  the  judge  of  what  things,  knowledge  or  information,  coming 
into  his  department  through  himself  personally  or  from  his  subordi- 
nates, may  or  may  not  be  revealed,  then  such  subordinates,  without 
his  permission,  cannot  be  compelled  to  disclose,  in  court,  any  such 
matters  or  information. 


Privileged  Communications  75 

WORTHINGTON  v.  SCRIBNER. 

lOp  Mass.  487.     (1872) 
« 

Tort  against  Charles  Scribner,  Andrew  C.  Armstrong,  Edward  Sey- 
mour, Arthur  J.  Peabody,  and  Charles  Welford. 

Gray,  J.  It  is  the  duty  of  every  citizen  to  communicate  to  his  govern- 
ment any  information  which  he  has  of  the  commission  of  an  offense 
against  its  laws.  To  encourage  him  in  performing  this  duty  without 
fear  of  consequences,  the  law  holds  such  information  to  be  among  the 
secrets  of  state,  and  leaves  the  question  how  far  and  under  what  cir- 
cumstances the  names  of  the  informers  and  the  channel  of  communica- 
tion shall  be  suffered  to  be  known,  to  the  absolute  discretion  of  the 
government,  to  be  exercised  according  to  its  views  of  what  the  in- 
terests of  the  public  require.  Courts  of  justice  therefore  will  not 
compel  or  allow  the  discovery  of  such  information,  either  by  the 
subordinate  officer  to  whom  it  is  given,  "by  the  informer  himself,  or 
by  any  other  person,  without  the  permission  of  the  government.  The 
evidence  is  excluded,  not  for  the  protection  of  the  witness  or  of  the 
party  in  the  particular  case,  but  upon  general  grounds  of  public  policy, 
because  of  the  confidential  nature  of  such  communications. 

The  question  now  before  us  is  not  one  of  the  law  of  slander  or 
libel,  but  of  the  law  of  evidence;  not  whether  the  communications 
of  the  defendants  to  the  officers  of  the  treasury  are  so  privileged 
from  being  considered  as  slanderous,  as  to  affect  the  right  to  main- 
tain an  action  against  the  defendants  upon  or  by  reason  of  them; 
but  whether  they  are  privileged  in  a  different  sense,  so  that  courts  of 
justice  will  not  compel  or  permit  their  disclosure  without  the  assent 
of  the  government  to  whose  officers  they  were  addressed.  The  rea- 
sons and  authorities  already  stated  conclusively  show  that  the  com- 
munications in  question  are  privileged  in  the  latter  sense,  and  cannot 
be  disclosed  without  the  permission  of  the  secretary  of  the  treasury. 
And  it  is  quite  clear  that  the  discovery  of  documents  which  are  pro- 
tected from  disclosure  upon  grounds  of  public  policy  cannot  be  com- 
pelled, either  by  bill  in  equity  or  by  interrogatories  at  law. 

Smith  V.  East  India  Co.,  i  Phil.  Ch.  50.  McElveney  v.  Connellan, 
17  Irish  C.  L.  55.  Wilson  v.  Webber,  2  Gray,  538.  The  defendants 
therefore  should  not  be  ordered  to  answer  the  interrogatories. 


76  Ci\sEs  ON  Evidence 

TOTTEN,  Administrator,  v..  UNITED  STATES. 
92  S.  C.  105.     (1875) 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  appeal  from  the  Court  of  Claims. 
The  action  was  brought  to  recover  compensation  for  services  alleged 
to  have  been  rendered  by  the  claimant's  intestate,  William  A.  Lloyd, 
under  a  contract  with  President  Lincoln,  made  in  July,  1861,  by  which 
he  was  to  proceed  South  and  ascertain  the  number  of  troops  stationed 
at  diflPerent  points  in  the  insurrectionary  States,  procure  plans  of 
forts  and  fortifications,  and  gain  such  other  information  as  might  be 
beneficial  to  the  government  of  the  United  States,  and  report  the 
facts  to  the  President;  for  which  services  he  was  to  be  paid  $200  a 
month. 

The  Court  of  Qaims  finds  that  Lloyd  proceeded,  under  the  contract, 
within  the  rebel  lines,  and  remained  there  during  the  entire  period  of 
the  war,  collecting,  and  from  time  to  time  transmitting  information  to 
the  President;  and  that,  upon  the  close  of  the  war,  he  was  only  re- 
imbursed his  expenses.  But  the  court,  being  equally  divided  in  opin- 
ion as  to  the  authority  of  the  President  to  bind  the  United  States 
by  the  contract  in  question,  decided,  for  the  purposes  of  an  appeal, 
against  the  claim,  and  dismissed  the  petition. 

We  have  no  difficulty  as  to  the  authority  of  the  President  in  the 
matter.  He  was  undoubtedly  authorized  during  the  war,  as  com- 
mander-in-chief of  the  armies  of  the  United  States,  to  employ  secret 
agents  to  enter  the  rebel  lines  and  obtain  information  respecting  the 
strength,  resources,  and  movements  of  the  enemy;  and  contracts  to 
compensate  such  agents  are  so  far  binding  upon  the  government  as 
to  render  it  lawful  for  the  President  to  direct  payment  of  the  amount 
stipulated  out  of  the  contingent  fund  under  his  control.  Our  ob- 
jection is  not  to  the  contract,  but  to  the  action  upon  it  in  the  Court 
of  Claims.  The  service  stipulated  by  the  contract  was  a  secret  serv- 
ice; the  information  sought  was  to  be  obtained  clandestinely,  and 
was  to  be  communicated  privately;  the  employment  and  the  service 
were  to  be  equally  concealed.  Both  employer  and  agent  must  have 
understood  that  the  lips  of  the  others  were  to  be  forever  sealed  re- 
specting the  relation  of  either  to  the  matter.  This  condition  of  the 
engagement  was  implied  from  the  nature  of  the  employment,  and  is 
implied  in  all  secret  employments  of  the  government  in  time  of  war, 
or  upon  matters  affecting  our  foreign  relations,  where  a  disclosure  of 


Examination  of  Witnesses  tj 

service  might  compromise  or  embarrass  our  |fovernment  in  its  public 
duties,  or  endanger  the  person  or  injure  the  character  of  the  agent. 
If  upon  contracts  of  such  a  nature  an  action  against  the  government 
could  be  maintained  in  the  Court  of  Claims,  whenever  an  agent  should 
deem  himself  entitled  to  greater  or  different  compensation  than  that 
awarded  to  him,  the  whole  service  in  any  case,  and  the  manner  of 
its  discharge,  with  the  details  of  dealings  with  individuals  and  officers, 
might  be  exposed,  to  the  serious  detriment  of  the  public.  A  secret 
service  with  liability  to  pubHcity  in  this  way,  would  be  impossible ; 
and,  as  such  services  are  sometimes  indispensable  to  the  government, 
its  agents  in  those  services  must  look  for  their  compensation  to  the 
contingent  fund  of  the  department  employing  them,  and  to  such  al- 
lowance from  it  as  those  who  dispense  that  fund  may  award.  The 
secrecy  which  such  contracts  impose  precludes  an  action  for  their 
enforcement.  The  publicity  produced  by  an  action  would  itself  be 
a  breach  of  a  contract  of  that  kind,  and  thus  defeat  a  recovery. 

It  may  be  stated  as  a  general  principle,  that  public  policy  forbids 
the  maintenance  of  any  suit  in  a  court  of  justice,  the  trial  of  which 
would  inevitably  lead  to  the  disclosure  of  matters  which  the  law 
itself  regards  as  confidential,  and  respecting  which  it  will  not  allow 
the  confidence  to  be  violated.  On  this  principle,  suits  cannot  be 
maintained  which  would  require  a  disclosure  of  the  confidences  of 
the  confessional,  or  those  between  husband  and  wife,  or  of  communi- 
cations by  a  client  to  his  counsel  for  professional  advice,  or  of  a 
patient  to  his  physician  for  a  similar  purpose.  Much  greater  reason 
exists  for  the  application  of  the  principle  to  cases  of  contract  for 
secret  services  with  the  government,  as  the  existence  of  a  contract 
of  that  kind  is  itself  a  fact  not  to  be  disclosed. 

Judgment  affirmed. 


EXAMINATION  OF  WITNESSES.i 

MANN  V.  STATE. 

jj^  Ala.  I,  22  So.  704.     (1902) 

The  appellant,  Charles  B.  Mann,  was  indicted  and  tried  for  the 
murder  of  David  Dickson,  was  convicted  of  murder  in  the  second 
degree,  and  sentenced  to  fifteen  years  in  the  penitentiary. 


iHughes  on  Evidence,  p.  319. 


78  Cases  on  Evidence 

The  bill  of  exceptioi!s  contains  the  following  recitals  as  to  the 
opening  statement  of  counsel:  "During  the  course  of  the  opening 
statement  of  counsel,  the  defendant's  counsel  having  stated  what  he 
expected  the  evidence  would  show  as  to  the  reasons  which  actuated 
the  defendant  at  the  time  of  the  homicide,  the  solicitor  in  reply 
stated  'The  State  expects  the  evidence  to  show  that  when  the  de- 
fendant was  asked  on  habeas  corpus  trial  as  to  what  he  had  reference 
to  when  he  told  the  deceased  "you  must  get  down  on  your  knees  and 
apologize,"  he  testified  that  he  had  reference  to  the  deceased  coming 
to  his  office  and  assaulting  him  with  a  knife,  had  reference  to  his 
calling  him  a  son  of  a  bitch  in  the  presence  of  a  negro,  and  had  ref- 
erence to  his  drawing  a  pistol  on  him  that  evening.'  The  defendant 
moved  to  rule  out  the  statement  upon  the  ground  that  the  defendant 
has  not  testified  and  it  is  not  known  that  he  will  testify,  because  the 
statement,  if  made,  is  not  in  the  nature  of  a  confession.  The  court 
denied  the  motion,  and  the  defendant  excepted,  the  court  stating  that 
he  would  tell  the  jury  that  they  should  pay  no  attention  to  the  state- 
ments of  counsel." 

McClEi^IvAn,  C.  J,  It  is  difficult  to  conceive  upon  what  ground  an 
objection  to  the  opening  statement  of  the  solicitor  as  to  what  he 
expects  the  evidence  will  show  can  be  predicated.  Issues  cannot  be 
taken  upon  the  existence  of  his  expectations  in  that  regard :  It  can- 
not be  asserted  in  any  way  that  we  know  of  either  that  he  does  not 
expect  this  or  that  testimony  to  be  forthcoming,  or  that,  though  he 
believes  this  or  that  testimony  to  be  in  existence,  he  does  not  expect 
the  court  to  receive  it  in  evidence.  At  most,  these  preliminary  state- 
ments, when  resorted  to  in  our  practice — whether  resorted  to  at  all 
or  not  in  any  case  is  within  the  election  of  counsel — are  tentative  and 
intended  to  give  the  jury  a  general  grasp  of  the  case  that  they  may 
be  the  better  able  to  understand  and  apply  the  facts  as  they  are  de- 
veloped in  the  course  of  the  trial ;  and  they  constitute  no  evidence  of 
the  facts  nor  in  any  sense  take  the  place  of  evidence.  That  part  of 
the  statement  of  the  solicitor  in  this  case  to  which  objection -was  made, 
moreover,  would  be  unobjectionable  even  were  it  conceded  that  such 
statements  are  open  to  challenge  in  this  way.  The  facts  which  the 
solicitor  stated  he  expected  to  prove  were  in  rebuttal  of  the  line  of 
defense  set  forth  in  the  preliminary  statement  of  defendant's  coun- 
sel, and  evidence  of  them  was  actually  and  properly  received  on  the 
trial.  The  court  committed  no  error  in  declining  to  "rule  out"  the 
soHcftor's  statement,  which  the  judge  did  in  terms,  but  at  the  same 
time  said  that  he  would  instruct  the  jury  to  "pay  no  attention  to  the 


'  Examination  o^  Witnesses  79 

statements  of  counsel."  It  is  proper  to  remark  that  this  declaration 
was  too  favorable  to  defendant.  The  presiding  judge  doubtless  in- 
tended to  instruct  the  jury  to  pay  no  attention  to  the  statements  as 
evidence,  for  of  course,  it  was  their  duty  to  be  attentive  to  these  state- 
ments as  statements  of  counsel  going  to  show  what  they  expected  the 
evidence  to  be. 

Affirmed. 


BARHYTE  v.  SUMMERS. 
68  Mich.  341;  36  N.  W.  93.     (1888) 

Morse,  J.  This  was  an  action  brought  originally  in  a  justice's 
court  by  the  plaintiff,  alleging  that  the  defendant  sold  to  him  a  horse 
which  he  knew  to  be  unsound,  fraudulently  representing  said  horse 
to  be  sound  "as  far  as  he  knew." 

The  two  vital  questions  upon  the  trial  in  the  circuit,  to  which  court 
it  was  appealed,  were : 

1.  Was  the  horse  unsound,  lame,  at  the  time  of  the  sale? 

2.  If  so,  did  the  defendant  know  of  such  lameness? 

The  court  in  the  course  of  the  trial,  and  while  the  plaintiff  had  the 
case,' said  to  plaintiff's  counsel: 

"You  have  called  five  witnesses  as  to  the  condition  of  this  mare 
before  the  sale.  How  many  more  do  you  propose  to  call?" 

The  counsel  answered  that  it  was  a  vital  point  in  the  issue,  and 
he  did  not  know  as  there  was  any  limit. 

The  Court.  "I  don't  think  it  ought  to  be  a  question  of  mere  num- 
bers; five  witnesses  are  as  good  as  five  hundred.  I  think  I  will 
draw  the  line  there." 

But  he  finally  allowed  plaintiff  to  examine  seven  witnesses  upon 
this  point,  saying  that  he  should  permit  no  more  to  be  sworn;  and 
stating : 

"You  have  already  called  seven  witnesses  showing  that  the  horse 
limped.     It  must  be  pretty  well  established  if  it  ever  can  be." 

The  counsel  for  plaintiff  then  offered  to  swear  other  witnesses  to 
the  fact  that  they  had  seen  the  horse  limp  before  the  sale  to  plaintiff, 
and  this  offer  being  denied,  plaintiff's  counsel  took  exception. 

When  the  defense  was  proving  the  issues  upon  its  part,  and  had 
examined  seven  witnesses  to  disprove  the  lameness  of  the  horse,  and 
offered  the  eighth  for  the  same  purpose,  the  court  said : 


8o  Cases  on  Evidence 

"I  think  you  have  exhausted  your  number.  You  had  seven  before 
you  called  Mr.  Kirk  (the  witness  offered)." 

The  counsel  for  the  defendant  then  said  that  he  desired  to  offer 
the  testimony  of  12  additional  witnesses  to  the  effect  that  they  had 
known  the  mare  for  weeks  and  months  prior  to  the  sale  to  plaintiff; 
had  seen  her  frequently;  that  they  had  seen  her  at  the  barn,  seen  her 
exercised,  and  that  she  was  sound  and  all  right  up  to  the  date  of  the 
sale. 

The  court  excluded  the  offered  testimony,  and  defendant's  counsel 
excepted.  He  was  permitted  afterwards  to  show  by  three  witnesses, 
other  than  the  seven,  and  by  the  defendant,  that  they  were  present  at 
some  of  the  times  when  the  lameness  was  observed  by  plaintiff's  wit- 
nesses and  noticed  nothing  of  the  kind. 

The  jury  found  in  favor  of  the  plaintiff. 

The  counsel  for  defendant  claims  that  the  remarks  of  the  trial 
judge  made  to  plaintiff's  counsel  about  the  value  of  the  testimony  of 
five  witnesses,  and  the  lameness  of  the  animal  must  be  pretty  well  es- 
tablished by  the  seven  witnesses  if  it  ever  could  be,  were  improper, 
and  tended  to  prejudice  the  defendant.  The  remarks  were  certainly 
not  proper,  but  whether  they  tended  more  to  the  injury  of  one  party 
than  another  we  are  not  able  to  determine;  nor  is  it  necessary  to  do 
so,  as  the  case  must  be  reversed,  and  a  new  trial  granted,  for  another 
reason. 

The  court  committed  substantial  error  in  limiting  the  number  of 
witnesses  to  be  sworn  by  either  side  upon  a  material  and  one  of  the 
main  issues  in  the  suit.  The  counsel  for  the  plaintiff  frankly  admit 
that  if  the  suit  had  gone  against  their  client,  they  should  have  asked 
for  a  reversal  here  upon  the  same  ground  that  defendant  now  urges; 
but  they  argue  that  under  the  ruling  no  harm  was  done  to  the  defend- 
ant, but  that  he  in  fact  reaped  an  advantage  by  being  permitted  in 
the  end  to  swear  more  witnesses  upon  the  point  of  lameness  of  the 
horse  than  the  plaintiff. 

But  the  defendant  was  entitled  to  offer  and  produce  all  the  proof 
he  had  upon  this  matter,  and  it  is  impossible  to  say  that  the  denial 
of  such  right  did  not  prejudice  his  case. 

We  do  not  consider  it  necessary  to  notice  the  other  assignments 
of  error,  as  upon  another  trial  the  question  is  not  likely  to  arise. 

The  judgment  of  the  court  below  is  reversed,  with  costs,  and  a 
new  trial  granted. 

The  other  justices  concurred. 


Examination  of  Witnesses  8i 

BELDEN  V.  ALLEN. 
6i  Conn.  //j.     (1891) 

Andrews,  C.  J.  Alice  A.  Belden  of  New  Britain,  a  minor  about 
the  age  of  thirteen  years,  brought  an  action  in  the  Court  of  Common 
Pleas  for  Hartford  County  at  its  January  term,  1891,  by  her  father, 
James  M.  Belden,  as  her  guardian  and  next  friend,  against  William  H. 
Allen.  The  complaint  was  in  two  counts — one  in  the  nature  of 
trespass  for  taking  and  carrying  away  certain  personal  property;  the 
other  in  the  nature  of  trover  for  the  same  articles  of  property.  The 
answer  was  a  general  denial.  At  the  trial  the  plaintiff  offered  tes- 
timony tending  to  prove  that  the  title  to  the  property  was  in  her, 
proved  its  value,  and  rested  her  case.  James  M.  Belden  was  in  court, 
but  did  not  offer  his  own  testimony  in  chief.  The  defendant  did  not 
deny  that  he  took  the  property,  but  claimed  that  he  was  a  constable 
and  attached  the  property  by  virtue  of  a  writ  against  the  said  James 
M.  Belden,  and  offered  testimony  tending  to  prove  that  it  belonged  to 
the  said  James  in  his  own  right  and  not  to  the  said  Alice.  After 
the  defendant  had  rested  his  case,  James  M.  Belden  was  offered  as 
a  witness  in  reply.  Certain  testimony  that  he  gave  was  received 
without  objection.  "The  plaintiff  then  offered,"  in  the  words  of  the 
finding,  "to  show  by  this  witness  and  by  an  exemplified  copy  of  the 
record  of  the  inventory  filed  by  him  as  the  administrator  in  the  court 
of  probate,  and  accepted  by  that  court,  as  the  inventory  of  the  estate 
of  the  mother  of  the  plaintiff,  that  at  the  time  of  the  purchase  of  the 
property  in  question  he  had  in  his  hands  funds  derived  from  the 
estate  of  the  plaintiff's  mother  which  he  had  expended  in  the  pur- 
chase of  the  property  for  the  plaintiff.  Upon  the  objection  of  the 
defendant  that  this  was  a  part  of  the  plaintiff's  case  in  chief,  and 
was  not  proper  evidence  in  rebuttal,  the  court  excluded  it." 

We  think  this  ruling  was  correct.  Under  the  pleadings  it  was  the 
duty  of  the  plaintiff  to  establish  her  own  title  to  the  personal  property 
in  dispute. 

"The  rule  upon  the  subject  is  a  familiar  one.  Where  by  the  plead- 
ings the  burden  of  proving  any  matter  in  issue  is  thrown  upon  the 
plaintiff,  he  must  in  the  first  instance  introduce  all  the  evidence  upon 
which  he  relies  to  establish  his  claim.  He  cannot  go  into  half  his  case 
and  reserve  the  remainder."     Nathaway  v.  Heminway,  20  Conn.  191. 

The  evidence  excluded  was  direct  evidence  to  prove  title  in  Alice, 
and  it  was  only  because  it  proved  such  title  that  it  tended  to  disprove 


82  .  Cases  on  Evidence 

title  in  James  M.  It  was  not  rebutting  testimony,  but  affirmative 
testimony  to  strengthen  the  claim  made  by  the  plaintiff.  It  is  true 
that  the  order  in  which  testimony  shall  be  given  upon  a  trial  is  subject 
to  the  discretion  of  the  court,  but  this  discretion  should  be  exercised 
with  great  caution.  The  rule  may  be  departed  from  when  its  opera- 
tion will  cause  great  injustice.  It  ought  not,  however,  to  be  so  fre- 
quently disregarded  as  to  render  it  a  rule  in  name  and  not  in  reality. 
There  was  nothing  in  this  case  calling  for  this  discretionary  power. 

There  is  no  error  in  the  judgment  appealed  from. 

In  this  opinion  the  other  judges  concurred. 


ALQUIST  V.  EAGLE  IRON  WORKS. 
126  Iowa  67;  105  N.  W.  805.     (1904) 

Suit  to  recover  for  personal  injuries  received  while  in  the  service 
of  the  defendant.  There  was  a  trial  to  a  jury,  and  a  verdict  and 
judgment  for  the  plaintiff.     The  defendant  appeals.     Reversed. 

Sherwin,  J.  The  defendant  is  a  corporation  operated  through  its 
agents  and  the  plaintiff  at  the  time  of  his  injury  was  employed  to 
operate  a  stationary  engine  which  was  used  for  running  the  machin- 
ery in  its  foundry.  He  was  directed  by  the  appellant's  manager,  to 
move  a  certain  fan  which  was  run  by  a  belt  and  in  doing  so  he  re- 
ceived the  injury  in  question.  On  the  same  day,  but  several  hours 
thereafter,  and  after  the  plaintiff  had  been  removed  to  his  own  home, 
his  wife  went  to  the  manager's  office  for  the  purpose  of  collecting  the 
wages  then  due  to  the  plaintiff  for  past  services ;  and  while  there 
she  was  told  by  said  manager,  in  answer  to  her  question  whether  it 
was  her  husband's  "fault  that  he  got  hurt,"  that  it  was  not;  "that 
he  couldn't  do  it  any  other  way.  He  was  told  to  fix  that  thing." 
This  conversation  the  plaintiff's  wife  was  permitted  to  detail  to  the 
jury  in  her  examination  in  chief,  over  the  objection  of  the  appellant. 
It  is  manifest  that  this  statement  of  the  manager  had  no  relation 
to  the  payment  of  the  money  then  due  for  the  husband's  services, 
and  that  it  was  incompetent,  under  the  general  rule,  and  under  our 
own  holding  in  McPherrin  v.  Jennings,  66  Iowa,  622.  The  latter 
part  of  the  statement  would  have  been  competent  in  rebuttal  of  the 
testimony  of  the  manager  that  he  did  not  direct  the  plaintiff  to  move 


Examination  of  Witnesses  83 

the  fan,  and  were  this,  in  effect,  all  that  the  statement  amounted  to, 
we  would  not  reverse  the  case  on  account  of  the  ruling,  because  it 
would  then  be  a  question  of  the  order  of  introducing  testimony,  and 
nothing  more.  But  the  statement  was  much  broader  than  this,  and 
involved  his  conclusion  that  the  plaintiff  was  not  guilty  of  contribu- 
tory negligence  in  obeying  his  orders  and  in  doing  the  work.  That  it 
was  prejudicial  to  the  appellant  is  clearly  apparent. 
For  the  error  in  admitting  the  testimony  referred  to,  the  case  is 

Reversed. 


ROLLINGS  V.  THE  STATE. 
160  Ala.  82;  4p  So.  32p.     (ipop) 

Mayfield,  J.  Accused  was  indicted  for  murder,  and  was  convicted 
of  manslaughter  in  the  first  degree,  from  which  judgment  of  convic- 
tion he  appeals.  There  was  no  question  or  dispute  that  defendant 
killed  the  deceased,  intentionally,  by  shooting  him  with  a  gun  and  a 
pistol.  There  was  no  question  as  to  the  identity  of  the  accused  nor 
as  to  that  of  the  deceased.  The  sole  dispute  was  whether  or  not 
defendant  acted  in  self-defense.  If  he  did  not,  the  only  question  for 
the  jury  was  the  degree  of  the  crime  and  of  the  punishment  to  be 
inflicted. 

It  was  clearly  competent  to  show  that  defendant  had  a  pistol  prior 
to  the  killing.  It  might  tend  to  show  preparation  for  the  crime,  and 
was  admissible  for  this  purpose,  if  for  no  other.  It  was  also  proper 
to  allow  the  state  to  prove  that,  several  hours  prior  to  the  killing, 
deceased  had  no  pistol.  The  accused  relied  upon  self-defense,  and 
his  evidence  was  to  the  effect  that  deceased  was  attempting  to  draw 
a  pistol,  with  which  to  shoot  accused,  at  the  time  the  fatal  shots  were 
fired.  Therefore  that  deceased,  several  hours  before  the  encounter, 
had  no  pistol,  was  a  circumstance  legitimate  to  disprove  the  only 
defense  attempted.  Its  tendency  may  have  been  very  slight,  but,  no 
matter  how  slight,  it  was  competent  for  this  purpose.  The  state 
had  a  right  to  show  that  deceased  was  unarmed  at  the  time  of  the 
killing,  and  to  show  that  he  did  not  have  the  saddlebags  with  him 
at  the  time  he  was  killed,  as  claimed  by  the  accused,  and  also  that 
he  was  not  in  the  habit  of  carrying  them,  as  was  claimed  and  at- 
tempted to  be  proven  by  the  accused.  All  this  evidence  had  a  tendency 
to  disprove  the  only  defense  attempted  to  be  set  up.     Wiley's  Case, 

/ 
/ 


84  Cases  on  Evidence 

99  Ala.  146,  13  South.  424;  Naugher  v.  State,  116  Ala.  466,  23  South, 
26. 

The  character  of  the  wife  of  the  defendant  was  wholly  irrelevant 
and  immaterial  on  this  trial,  as  a  substantive  fact.  Evidence  of  im- 
proper relations  between  her  and  deceased  might  be  relevant  to  show 
maHce  or  motive  on  the  part  of  the  accused,  or  have  a  tendency  to 
show  who  provoked  or  brought  on  her  difficulty,  and  proof  of  this 
improper  relation  would,  of  course,  be  evidence  of  bad  character; 
but  the  improper  relations  cannot  be  proven  by  evidence  of  her  bad 
character.  The  state  should  not  have  been  allowed,  over  the  objec- 
tions of  the  accused  to  prove  the  general  character  of  his  wife  or 
her  character  for  chastity.  She  was  not  a  witness,  and  could  not 
be  a  witness  for  or  against  him.  Proof  of  her  bad  character  could 
not  go  to  the  credibility  of  the  defendant  or  his  other  witnesses,  nor 
is  he  criminally  or  civilly  liable  for  her  character  as  to  chastity.  Her 
chastity  of  itself  would  not  justify  him  in  killing  the  deceased,  nor 
would  her  unchastity  make  him  guilty  when,  but  for  it,  he  would 
be  innocent.  The  character  of  the  wife  cannot  be  made  a  direct 
subject  of  inquiry,  on  a  trial  of  the  husband  for  crime,  when  she 
is  not  a  witness  and  not  interested  in,  nor  in  any  manner  connected 
with,  the  prosecution  or  defense.  It  was  not  a  subject  of  inquiry 
in  this  case,  except  in  so  far  as  it  involved  by  showing  improper  re- 
lations between  her  and  deceased,  and  these  relations  could  not  be 
shown  by  proof  of  her  character.  We  know  of  no  authority  for 
allowing  proof  of  the  good  or  bad  character  of  a  third  party  or 
stranger  to  a  suit,  when  not  a  witness,     i  Elliott  on  Evi.  168. 

The  clothing  of  deceased,  as  well  as  that  of  the  accused,  letters 
found  on  the  body  of  deceased,  the  instruments  causing  the  death, 
photographs  of  the  deceased  and  accused,  maps  and  plats  of  the 
scene  of  the  crime,  pieces  of  cloth,  buttons,  gun  wadding  found  near 
the  scene  of  the  crime,  bullets  cut  from  house  and  trees  near  such 
scene,  blood  stains,  etc.,  are  usually  held  admissible  on  trials  of  homi- 
cide. There  are  only  a  very  few  cases  in  which  they  have  been 
excluded,  when  offered  as  evidence  for  the  inspection  of  the  jury, 
if  tending  to  elucidate  the  transactions,  to  identify  any  of  the  parties, 
to  connect  the  accused  with  the  crime,  or  to  show  the  character  of  the 
wound,  motive  or  intent  of  the  killing,  or  degree  of  the  crime — 
whether  the  killing  was  in  self-defense  or  not.  If  such  objects  t^nd 
to  corroborate  or  disprove,  illustrate  or  elucidate,  any  other  evidence 
they  are  admissible  though  such  evidence  may  have  a  tendency  to 
bias  or  prejudice  the  jury,  or  to  elicit  their  sympathy   for,  or  an'- 


Examination  of  Witnesses  85 

mosity  toward,  either  the  deceased  or  the  accused.  7  Mayfield's  Dig., 
p.  390.  But  in  order  for  such  objects  to  be  admissible  in  any  case, 
civil  or  criminal,  they  must  have  scwne  tendency  to  prove  or  disprove 
some  disputed  or  material  issue,  to  illustrate  or  elucidate  some  other 
relevant  fact  or  evidence,  to  corroborate  or  disprove  some  other  evi- 
dence offered  or  to  be  offered.  They  must  have  some  tendency  to 
shed  light  upon  some  material  inquiry.  Circumstances  or  facts,  to 
be  admissible  in  evidence,  or  relevant  on  a  trial,  must  tend  either  to 
prove  or  disprove  some  matter  in  issue,  in  order  that  the  attention 
of  the  jury  may  not  be  distracted  from  such  matters  in  issue.  The 
test  of  the  relevancy  of  the  evidence  in  criminal  cases  is  whether 
it  conduces  to  the  proof  of  a  pertinent  hypothesis — one  which,  if 
sustained,  would  logically  influence  an  issue  on  trial.  Whittaker  v. 
State,  106  Ala.  30,  17  South  456;  Curtis  v.  State,  118  Ala.  125,  24 
South.  Ill;  McCormick  v.  State,  102  Ala.  161,  15  South.  438; 
Campbell's  Case,  23  Ala.  44;  Gassenheimer's  Case,  52  Ala.  313. 

The  wearing  apparel  of  deceased,  showing  the  location  of  the  bul- 
lets, the  character  and  nature  of  the  wound,  the  blood  stains,  etc., 
were  properly  admissible  under  the  rules  stated  above,  and  it  is  no 
reason  to  exclude  them  that  these  matters  might  be  shown  by  other 
evidence,  or  that  these  objects  might  prejudice  the  jurors.  Being 
admissible,  they  should  not  be  excluded  for  these  or  any  other  rea- 
sons. But  we  are  unable  to  conceive  of  any  relevancy  that  the 
saddle  of  the  deceased,  which  he  was  riding  when  killed,  could  have 
to  any  issue  of  this  case.  What  relevancy  could  the  suspenders  he 
was  wearing  at  the  time,  or  the  tobacco,  keys,  or  ring,  found  on  his 
person,  have  to  any  issue  on  trial?  They  bore  no  marks  of  bullets, 
no  blood  stains,  and  afforded  no  evidence  of  any  violence.  They 
had  no  tendency  to  show  how,  by  whom,  or  in  what  manner,  deceased 
was  killed,  or  whether  he  was  killed  or  not ;  and  no  other  facts,  singly 
or  collectively,  tended  to  make  them  relevant  for  this  or  any  other 
purpose.  The  corpus  delicti  was  admitted.  There  was  no  issue  as 
to  the  identity  of  deceased  or  that  of  accused.  They  did  not,  singly 
or  collectively,  tend  to  prove  or  disprove  self-defense — ^the  only  dis- 
puted issue.  The  only  effect  of  introducing  them  in  evidence  was 
to  unduly  prejudice  the  views  of  the  jury — arouse  their  sympathy 
for  deceased  and  to  prejudice  them  against  the  accused.  The  court 
should  have  excluded  all  such  articles,  as  having  no  tendency  to 
prove  or  disprove  any  issue  on  trial.  As  said  by  this  court  in  Pera- 
son's  Case,  97  Ala.  219;  12  South.  180;  "sympathy  or  indignation 
once  aroused  in  the  average  juror  readily  becomes  enlisted  to  the 


86  Cases  on  Evidence 

prejudice  of  the  person  accused  as  the  author  of  the  injury.  Human 
feelings  are  easily  excited  by  the  exhibition  of  objects  which  appeal 
to  the  senses,"  In  that  case  a  shoe  only,  which  was  worn  by  deceased 
when  he  was  killed,  was  allowed  in  evidence,  and  it  was  a  civil  ac- 
tion; and  yet  it  was  held  reversible  error,  for  that  reason.  In  Robin- 
son's Case,  io8  Ala.  14,  18  South-  732,  which  was  a  trial  for  murder, 
a  letter  from  the  pocket  of  the  deceased  was  held  not  to  be  admissible 
because  it  could  shed  no  light  on  the  transaction.  In  that  case  the 
evidence  is  explained,  and  the  reasons  are  assigned  why  it  was  not 
admissible,  and  circumstances  given  under  which  it  might  have  been 
admissible.  There  are  cases  where  all  the  articles  offered  in  this 
case  might  have  been  admissible,  but -this  particular  case  does  not 
fall  within  such  class. 

The  court  very  properly  declined  to  allow  counsel  for  defendant 
to  ask  the  witness  Stephens  if  his  memory  then,  as  to  the  facts  to 
which  he  was  testifying,  was  any  better  than  it  was,  as  to  matters 
on  the  preliminary  trial.  This  was  calculated  and  intended  as  a  mere 
argument  with  the  witness.  It  was  likewise  wholly  irrelevant  whether 
Pick  Roden  was  at  the  funeral.  The  court  very  properly  declined  to 
allow  proof  as  to  this. 

It  was  proper  to  allow  proof  of  flight  by  defendant,  soon  after 
the  killing,  and  to  do  this  it  was  proper  to  prove  the  direction  of 
his  flight,  the  mode  of  his  travel,  the  places  to  which  he  went  and 
those  he  avoided,  in  fact,  to  prove  his  conduct  and  demeanor  soon 
after  the  killing  and  while  fleeing;  but  we  are  unable  to  see  what 
relevancy  the  fact  that  the  captain  of  the  steamboat  was  related  to 
defendant  could  have  on  any  issue.  It  was  clearly  inadmissible,  but 
we  cannot  discern  any  possible  injury  or  good  to  come  of  it. 

It  might  be  very  important  to  know  how  and  when  the  defendant 
obtained  the  pistol  with  which  he  shot  deceased;  and  the  court  prop- 
erly allowed  proof  of  that  fact. 

It  was  wholly  irrelevant  and  inadmissible  to  allow  the  state  to 
prove  the  genealogy  of  the  wife  of  the  defendant,  the  pecuniary  con- 
dition of  her  family,  that  her  brother  had  no  home,  that  her  father 
was  dead,  etc.  This  was  highly  improper.  Such  matters  could  only 
unduly  and  improperly  elicit  sympathy  for  the  wife,  and  for  the 
deceased,  who  seems  to  have  supported  her  and  lived  with  her  and 
to  have  had  improper  relations  with  her. 

The  character  and  the  pecuniary  condition  of  the  wife  and  the 
merits  of  the  divorce  proceedings  between  her  and  her  husband, 
should  not  have  been  gone  into.    This  trial  was  not  the  proper  time 


Examination  o:f  Witnesses  87 

or  plaee  to  inquire  into  these  matters,  which  were  wholly  "res  inter 
alios  acta."  The  facts  of  the  separation  of  the  husband  and  wife,  the 
pendency  of  divorce  proceedings,  the  relation  of  the  deceased  to  these 
matters,  might  be  proper;  but  it  was  not  proper  to  go  into  the  details 
and  the  merits  of  these  controversies. 

It  was  competent  for  the  state  to  prove  that  the  defendant  had 
been  convicted  of  manslaughter.  He  made  himself  a  witness,  and 
this  evidence  was  therefore  admissible,  to  go  to  his  credibility,  and  the 
fact  that  he,  as  a  witness,  admitted  the  conviction  and  sentence,  did 
not  prevent  or  preclude  the  state  from  proving  it  by  record  evidence ; 
but  this  evidence  went  to  his  credibility  only  as  a  witness,  and  should 
have  been  so  limited  by  the  court,  on  request  of  the  defendant.  It 
was  not  admissible  for  the  purpose  of  showing  that,  because  he  was 
guilty  of  manslaughter  for  killing  Manning,  he  was  also  guilty  of  man- 
slaughter in  Killing  Roden,  the  deceased,  for  which  he  was  then  on 
trial. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 

DowdElIv,  C.  J.,  and  Simpson  and  Denson,  JJ.,  concur. 


PAGE  V.  PARKER. 
40  N.  H.  4r.     (i860) 


In  the  deposition  of  Arioch  Wentworth,  introduced  by  the  plaintiff, 
is  the  following  question  and  answer  on  direct  examination  by  the 
plaintiff,  to  wit:  "State  whether  or  not  any  of  this  stone  was  so 
hard  that  it  could  not  be  sawed  with  the  common  saw  used  in  sawing 
soap-stone." 

Ans.  "1  should  think  some  of  it  was  so  hard  it  would  be  rather 
difficult."  The  defendants  objected  to  the  question,  as  leading,  at 
the  caption  of  the  deposition  and  also  on  the  trial,  but  it  was  ad- 
mitted. 

Fowler,  J.  A  variety  of  questions  are  raised  by  the  case,  and 
have  been  discussed  by  counsel,  to  only  a  portion  of  which  have  we 
found  it  necessary  to  direct  our  attenion  in  arriving  at  a  conclusion. 

The  question  proposed  to  Arioch  Wentworth  in  his  deposition 
was  manifestly  leading.  It  suggested  a  material  fact  in  such  a 
way  as  to  indicate  very  decisively  to  the  witness  that  he  was  ex- 


88  Cases  on  Evidence 

pected  to  verify  its  truth  by  his  answer,  and  might  have  been  an- 
swered by  a  simple  affirmative  or  negative.  It  was  an  argumenta- 
tive or  pregnant  interrogatory,  assuming  the  existence  of  a  particu- 
lar condition  of  the  soap-stone,  which  had  not  been  proved,  but  which 
the  witness  was  evidently  expected  to  establish,  i  Gr.  Ev.,  sec.  434; 
Bartlett  v.  Hoyt,  33  N.  H.  165;  Dudley  v.  Elkins,  39  N.  H.  78;  Spear 
V.  Richardson,  37  N.  H.  23. 

A  question  is  leading  which  instructs  the  witness  how  to  answer 
on  material  points,  or  puts  into  his  mouth  words  to  be  echoed  back, 
as  was  here  done,  or  plainly  suggests  the  answer  which  the  party 
wishes  to  get  from  him,  whether  it  be  put  in  the  alternative  form 
or  not.  2  Phill.  Ev.  (Edwards'  Ed.),  ch.  10,  sec.  i,  and  notes;  People 
V.  Mather,  4  Wend.  229;  i  Stark.  Ev.  123;  Courteen  v.  Touse,  i 
Camp.  43;  Snyder  v.  Snyder,  6  Binn.  483. 

Exceptions  sustained — new  trial  granted. 


COMMONWEALTH  v.  DORR. 
216  Mass.  314.     (19 1 4) 

RuGG,  C.  J.  The  defendant  was  indicted  for  the  murder  of  one 
George  E.  Marsh.  The  defendant  admitted  the  killing,  but  asserted 
'that  it  was  in  self  defense.  It  was  undisputed  that  the  deceased  died 
instantaneously,  from  bullet  wounds  received  from  the  defendant. 

Two  witnesses  were  called  by  the  Commonwealth  for  the  purpose 
of  identifying  the  button  found  in  the  road  near  the  place  where  the 
body  of  the  deceased  was  discovered,  and  being  a  button  from  the  coat 
of  the  defendant.  The  button  was  shown  to  each  of  the  witnesses 
and  then  inquiries  were  made  about  it.  The  defendant  objected  upon 
the  ground  that  it  was  a  leading  question,  to  present  an  article  to  a 
witness  with  an  inquiry  about  it.  But  even  if  it  be  treated  as  a 
leading  question,  this  is  not  ground  for  setting  aside  the  verdict. 
Within  reasonable  limits,  leading  questions  may  be  permitted  as  mat- 
ter of  discretion  by  the  presiding  judge.  Moody  v.  Rowell,  17  Pick. 
490,  498.  York  V.  Pease,  2  Gray,  282.  Green  v.  Gould,  3  Allen,  465. 
Commonwealth  v.  Meserve,  154  Mass.  64,  68. 

Exceptions  overruled. 


Examination  of  Witnesses  89 

CHRISTENSEN  v.  THOMPSON. 

12^  lozva  777.     (1904) 

Weaver,  J.  The  plaintiff,  a  married  man,  charges  the  defendant 
with  alienating  the  affections  of  his  wife,  and  inducing  her  to  aban- 
don her  husband  and  home.  Defendant  denies  the  charge,  and  says 
that  if  the  wife  has  been  alienated  from  her  husband,  it  has  been 
caused  by  the  husband's  ill  treatment.  Upon  trial  to  a  jury,  verdict 
was  returned  in  plaintiff's  favor  for  $500,  and  from  the  judgment 
entered  therein  defendant  appeals. 

The  plaintiff,  as  a  witness  in  his  own  behalf,  having  testified  that 
on  one  or  more  occasions,  coming  home  from  his  work,  he  had  found 
defendant  there,  he  was  asked  by  his  counsel  "Was  he  ever  there 
when  he  did  not  have  any  business  there,  at  night,  that  you  know 
of?"  Over  the  defendant's  objection  the  witness  was  allowed  to 
answer:  "A.  I  don't  know  that  he  did,  or  was  coming  to  ask 
her  to  come  over  and  bake  bread  for  him;  something  like  that.  I 
won't  say  that.  I  don't  think  he  did  always.  I  did  not  get  sus- 
picious of  him.  The  first  I  thought  anything  was  wrong,  the  children 
commenced  to  talk.  After  my  wife  left,  I  had  a  talk  with  Thomp- 
son about  it."  Error  is  assigned  upon  this  ruling,  because,  it  is  said, 
it  called  for  the  mere  conclusion  or  conjecture  of  the  witness.  It 
is  to  be  admitted  that  the  form  of  the  question  leaves  it  open  to 
the  construction  which  appellant  puts  upon  it,  but  when  fairly  inter- 
preted it  is  not  objectionable.  It  is,  in  effect,  as  if  counsel  had  asked, 
"What  was  his  errand  there?"  or,  "Do  you  know  whether  he  had 
any  errand  there?"  in  which  form  we  think  the  inquiry  would  have 
been  allowable.  But,  even  if  we  were  to  hold  that  the  objection  should 
have  been  sustained,  the  answer  discloses  nothing  which  was  not 
properly  admissible  in  evidence,  and  the  error  would  be  without  preju- 
dice. 

It  is  further  objected  in  argument  that  the  answer  was  not  re- 
sponsive to  the  question,  but  this  point  was  not  made  in  the  court 
below,  and,  moreover,  the  objection  of  want  of  responsiveness  is 
not  available  except  to  the  party  propounding  the  interrogatory. 

The  same  witness  was  asked,  "What  did  he  (defendant)  say  to  you 
about  her  not  being  your  wife — something  like  that?"  Defendant's 
objection  to  this  question  was  overruled,  and  the  witness  answered 
"He  said,  'Your  wife  leave  you,  and  she  is  not  your  wife  any  more, 
and  I  have  a  right  to  take  her  wherever  I  want  to.' "    The  question 


90  Cases  on  Evidence 

was  quite  leading;  a  form  of  interrogatory  which  should  not  ordi- 
narily be  permitted;  but  its  allowance  is  so  far  a  matter  within  the 
discretion  of  the  court  that  it  will  not  justify  a  reversal  save  where 
that  discretion  has  been  abused.  It  appears  from  the  record  that 
the  parties  are  of  foreign  birth,  and  their  command  of  the  English 
language  quite  imperfect.  Under  such  circumstances  direct  and  lead- 
ing inquiries  are  often  permissible,  if  not,  indeed,  necessary.  The 
answer  called  for  by  this  question  was  competent  and  material.  It  is 
true  the  alleged  conversation  took  place  after  plaintiff's  wife  had  left 
him,  but  the  conduct  and  statements  of  the  defendant  with  refer- 
ence to  her,  and  his  disposition,  if  any,  to  seek  her  society  in  defi- 
ance of  her  husband's  wishes,  were  circumstances  having  more  or 
less  bearing  upon  the  truth  of  the  charge  of  prior  intimacy  between 
them. 

One  Williamson,  a  witness  for  plaintiff,  testified  that  he  was  the 
pastor  of  the  parties,  and  that,  after  the  separation  had  taken  place, 
he  met  them  at  a  neighbor's  house,  and  sought  to  induce  plaintiff's 
wife  to  return  to  her  husband,  but  that  she  and  defendant  said  they 
"wanted  to  be  cleared  first."  On  cross-examination  he  was  asked 
what  the  wife  said  in  that  conversation  about  having  been  accused 
by  her  husband  of  improper  conduct  with  men  other  than  defendant. 
Upon  objection  by  the  plaintiff,  answer  to  this  question  was  ruled 
out  as  not  being  proper  cross-examination.  The  objection  could  well 
have  been  overruled  without  error,  but  the  same  witness  did  answer 
later  that  Mrs.  Christensen  did  say  that  on  a  former  occasion  her 
husband  had  become  jealous  of  one  Hayfeldt,  and  had  found  fault 
with  her  several  times  before  about  other  men.  The  wife  herself 
also  testified  to  such  accusations  against  her  by  the  plaintiff,  and 
everything  which  could  have  been  obtained  by  allowing  the  question 
to  be  answered  by  the  pastor  seems  to  have  gone  to  the  jury.  The 
defendant  suffered  no  prejudice  by  the  ruling. 

The  judgment  of  the  District  Court  is  affirmed. 


Examination  of  Witnesses  91 

MAYVILLE  V.  FRENCH. 
246  III.  434;  p2  N,  B.  pip.    (ipio) 

Mr.  Justice  Cartwright  delivered  the  opinion  of  the  court. 

PermeHa  Brown  died  in  Chicago  on  July  9,  1909,  possessed  of  real 
and  personal  property  and  leaving  a  last  will  and  testament  dated 
December  i,  1904,  and  a  codicil  dated  December  28,  1907,  which 
were  admitted  to  probate  in  the  Probate  Court  of  Cook  County. 
The  appellant,  Anthony  Mayville,  her  nephew,  filed  his  bill  in  this 
case  in  the  Superior  Court  of  Cook  County,  setting  forth  the  two  in- 
struments and  charging  that  they  were  not  executed  according  to 
law;  that  she  was  in  her  dotage  and  not  of  sound  mind  and  memory 
and  that  the  will  was  the  product  of  undue  influence  exercised  upon 
her  by  interested  persons,  and  praying  that  the  instruments  be  de- 
clared null  and  void  and  the  probate  set  aside.  Issues  were  made  up 
and  submitted  to  a  jury,  which  returned  a  verdict  that  the  instru- 
ments were  her  last  will  and  testament.  The  court  entered  a  decree 
on  the  verdict,  and  an  appeal  was  prosecuted  to  this  court. 

There  were  some  rulings  on  the  admission  of  evidence  which  were 
excepted  to.  Some  of  them  related  to  receiving  opinions  of  the  wit- 
nesses as  to  the  mental  capacity  of  the  testatrix  and  her  capacity  to 
transact  business.  The  witnesses  had  known  her  for  a  considerable 
period  of  time  and  had  stated  their  opportunities  for  observation  and 
the  facts  on  which  their  opinions  were  founded.  In  this  class  of 
cases  witnesses,  after  showing  such  facts,  may  give  an  opinion.  In 
the  case  of  the  attorney  who  drew  the  will  and  codicil  and  was  present 
at  their  execution,  questions  were  objected  to  on  the  ground  that 
they  were  leading  and  suggestive.  The  witness  had  already  testified 
that  the  testatrix  was  of  sound  and  disposing  mind  and  memory,  and 
his  answers  to  the  leading  questions  did  not  add  anything  to  the  tes- 
timony already  given.  It  need  not  be  said  that  he  needed  no  sug- 
gestion as  to  what  was  wanted  and  that  he  was  not  aided  by  any. 
The  manner  in  which  questions  may  be  put  to  a  witness  is  largely  in 
the'  discretion  of  the  trial  court,  and  while  some  questions  put  to  the 
attorney  were  leading  in  form,  there  was  no  injury  to  the  appellant 
from  the  ruling. 

None  of  the  rulings  of  the  court  which  were  excepted  to  would 
justify  a  reversal  of  the  decree,  and  accordingly  it  is  affirmed. 

Decree  affirmed. 


92  Cases  on  Evidence 

GRANGER  v.  DARLING. 
156  Mich.  $1;  120  N.  W.  j-?.     (1909) 

Grant,  J.  Plaintiff  was  calling  at  the  house  of  the  defendant 
on  business.  As  she  was  upon  the  steps  leading  into  the  house,  she 
was  attacked  and  bitten  by  a  dog,  claimed  to  be  the  defendant's.  She 
brought  suit  against  him  and  recovered  a  judgment  for  $500. 

Defendant  called  a  wtness  named  Andrew  Messick,  and  asked  him: 
"Have  you  been  paid  for  being  a  witness  in  this  case  more  than  the 
regular  fee?"  Counsel  for  plaintiff  objected  to  the  form  of  the 
question,  in  that  it  was  suggestive  and  leading,  and  it  did  not  ap- 
pear that  witness  knew  what  the  regular  fee  is.  The  court  sustained 
the  objection,  and  stated  that  defendant's  counsel  could  ask  witness 
in  any  other  form  about  what  he  had  been  paid,  if  he  desired.  Coun- 
sel did  not  take  advantage  of  the  offer.  There  was  no  error  in  the 
ruling. 

Judgment  affirmed. 

Blair,  C.  J.,  and  Montgomery,  Moore  and  McAlvay,  JJ.,  con- 
curred. 


PEEBLES  v.  O'GARA  COAL  CO. 
239  III-  370;  88  N.  E.  166.     (1909) 

This  is  an  action  on  the  case  brought  by  defendant  in  error  in 
the  Circuit  Court  of  Saline  county  to  recover  damages  for  injuries 
sustained  by  him  while  at  work  as  a  miner  in  plaintiff  in  error's 
mine,  Aug.  13,  1906. 

The  declaration  originally  consisted  of  four  counts.  The  third 
count  having  been  withdrawn  by  defendant  in  error,  the  case  was 
tried  on  the  first,  second  and  fourth  counts,  and  plaintiff  in  error 
was  found  guilty  by  the  jury  on  the  first  and  fourth  only,  the  ver- 
dict and  judgment  being  for  $1500.  This  judgment  was  affirmed 
by  the  Appellate  Court  on  appeal,  and  a  writ  of  error  has  been  sued 
out  from  this  court. 

Mr.  Justice  Carter  delivered  the  opinion  of  the  court. 

Plaintiff  in  error  further  complains  that  the  trial  court  improp- 
erly permitted  defendant  in  error's  counsel  to  ask  leading  questions 


Examination  of  Witnesses  93 

of  his  witnesses.  A  question  is  leading  when  it  indicates  to  the 
witness  the  real  or  supposed  fact  which  the  examiner  expects  and 
desires  to  have  confirmed  by  the  answer.  (2  Elliott  on  Evidence, 
sec.  836.)  Defendant  in  error  contends  that  in  many  of  these  ques- 
tions objected  to,  the  examiner  avoided  the  grounds  for  objection 
by  using  the  term  "whether  or  not".  This  does  not  necessarily  keep 
the  question  from  being  leading,  as  it  still  may  suggest  to  the  wit- 
ness the  answer  desired.  (2  Elliott  on  Evidence,  sec.  837.)  In 
Daugherty  v.  Heckard,  189  111.  239,  in  discussing  this  subject  we 
said  (p.  246)  :  "The  propriety  of  admitting  or  excluding  leading 
questions  is  within  the  sound  discretion  of  the  trial  court.  In  some 
of  the  states  this  discretion  is  not  subject  to  review ;  in  others  the 
rule  is  that  a  manifest  and  injurious  abuse  of  the  discretion  may  be 
corrected  in  the  courts  having  appellate  jurisdiction.  The  latter  rule 
obtains  in  this  court."  In  Funk  v.  Babbitt,  156  111.  408,  the  rule  was 
laid  down  that  the  allowance  of  leading  questions  would  only  be 
ground  for  reversal  when  the  discretion  of  the  trial  court  was  pal- 
pably abused  and  substantial  injury  done.  The  questions  objected  to 
as  leading  are  quite  numerous.  It  is  sufficient  to  say  that  we  have 
examined  them,  and  think,  under  the  rules  stated  above,  they  were 
within  the  bounds  of  the  discretion  vested  in  the  trial  court,  and 
that  the  answers  to  such  questions  were  not  on  this  record,  prejudicial 
to  plaintiff  in  error.  It  may  be  noted  that  some  of  these  questions 
come  within  the  rule'  laid  down  in  Swartwout  v.  Evans,  41  111.  376, 
in  merely  directing  the  witness'  attention  to  the  particular  point  in 
controversy,  and  therefore  were  not  improper. 

Plaintiff  in  error  further  insists  that  the  court  erred  in  its  ruling 
as  to  a  certain  question  asked  of  one  of  its  witnesses,  and  the  an- 
swer thereto.  The  question  was  double  in  its  nature,  and  it  is  ap- 
parent from  the  record  that  the  part  of  the  question  that  counsel 
desired  answered  was  afterward  asked  and  answered,  so  that  no  harm 
was  done  by  the  ruling. 

We  find  no  reversible  error  in  the  record,  and  the  judgment  of  the 
Appellate  Court  will  therefore  be  affirmed. 


94  Cases  on  EviDBNot 

KANKAKEE  v.  ILLINOIS  CENTRAL  RY.  CO. 
238  III.  368;  loi  N.  B.  592-    (1913) 

Mr.  Chief  Justice  Dunn  delivered  the  opinion  of  the  court. 

The  city  council  of  the  city  of  Kankakee  passed  an  ordinance  for 
the  paving  of  a  part  of  East  avenue  from  the  north  line  of  Hickory 
street  to  the  north  line  of  River  street  and  of  a  part  of  River  street 
from  the  east  line  of  East  avenue  to  the  west  line  of  Washington 
avenue,  and  directed  that  the  whole  cost  of  the  improvement  should 
be  paid  by  special  taxation  to  be  levied  upon  the  property  contiguous 
to  and  abutting  thereon,  in  the  proportion  of  the  frontage  of  each 
lot,  block,  tract,  or  parcel  of  land  and  property.  *  *  *  The  railroad 
company  objected  to  the  confirmation  of  the  assessment  roll  but  its 
objections  were  overruled,  and  this  appeal  is  from  the  judgment  of 
confirmation. 

In  examining  a  witness  called  for  the  purpose  of  sustaining  the 
assessment  appellee's  counsel  asked  the  following  question  in  chief: 
"I  show  you  now  the  assessment  roll  filed  in  this  case,  with  an  as- 
sessment total  of  $6799.61  assessed  against  that  portion  of  the  Illinois 
Central  right  of  way  lying  between  the  north  line  of  Hickory  street 
and  the  south  line  of  River  street,  and  I  will  ask  you  whether  in 
your  opinion  that  assessment  exceeds  the  benefits  that  that  property 
will  derive  from  this  improvement?'*  The  question  was  objected  to 
as  leading,  and  the  witness  answered :  "No  sir ;  I  don't  think  it  does, 
according  to  my  assessment."  Substantially  the  same  thing  occurred 
with  another  witness.  The  objection  should  have  been  sustained. 
The  question  merely  set  up  a  mark  for  the  witness  to  hit.  That 
question  was  the  ultimate  fact  to  be  determined.  Witnesses  could 
properly  be  called  upon  to  give  an  opinion  as  to  the  amount  that  the 
property  was  benefited  but  not  to  determine  the  whole  issue. 

Reversed  and  remanded. 


Examination  of  Witnesses  95 

ANDERSON  v.  BERRUM. 
36  Nev.  463;  136  Pac.  973.     (1914) 

By  the  Court,  Talbot,  C.  J. : 

Plaintiff  brought  this  action  to  recover  for  trespass  by  defendant's 
band  of  about  2,800  sheep.  In  the  complaint  filed  upon  the  com- 
mencement of  the  action,  the  different  items  constituting  the  damage, 
but  not  the  amount  claimed  for  each,  were  stated,  and  an  aggregate 
sum  of  $350  demanded,  and,  after  demurrer  was  interposed  and 
sustained,  plaintiff  filed  an  amended  complaint  in  which  he  asked  judg- 
ment for  twice  that  amount,  and  specified  the  sums  he  claimed  for  the 
different  acts  causing  the  damage. 

According  to  the  amended  complaint,  it  is  sought  to  recover  as 
damages  $350  for  herding  and  grazing  the  sheep  upon  the  lands  of 
the  plaintiff,  and  the  eating,  and  tramping  of  the  grass  and  verdure 
so  it  would  not  replenish,  $50  for  knocking  down  a  part  of  the  piles 
of  cordwood  which  plaintiff  had  upon  the  land,  $150  for  tramping 
and  filling  with  rocks  and  debris  the  road  and  trails  used  by  the 
plaintiff  for  packing  wood,  and  $150  tramping,  choking  up,  and  filling 
springs  which  were  situated  on  the  land,  and  which  were  used  by 
plaintiff  for  household,  stock,  and  domestic  purposes,  and  for  fluming 
wood. 

Over  the  objection  of  the  defendant,  the  court  allowed  plaintiff 
to  answer  upon  his  redirect  examination  several  leading  questions 
which  put  into  his  mouth  words  of  his  attorney. 

In  this  and  in  most  jurisdictions  in  this  country,  the  cross-examina- 
tion must  be  limited  to  matters  stated  in  the  examination  in  chief 
and  questions  to  test  the  accuracy,  veracity,  and  credibility  of  the 
witness.  (Buckley  v.  Buckley,  12  Nev.  423;  Furguson  v.  Ruther- 
ford, 7  Nev.  385;  Cokely  v.  State,  4  Iowa,  477;  People  v.  Miller,  33 
Cal.  99;  Houghton  v.  Jones,  68  U.  S.  706,  17  L.  Ed.  503;  Hughes 
v.  Coal  Co.,  104  Pa.  207 ;  Hurlburt  v.  Meeker,  104  111.  541 ;  Jones  on 
Evidence,  sec.  820.)  "> 

This  rule  does  not  prevent  the  cross-examining  party  from  making 
the  witness  his  own  after  the  adverse  party  has  closed  his  case  in 
chief,  and  does  not  prevent  the  court  from  allowing,  in  its  discretion 
a  rigid  examination  of  the  witness  if  he  is  hostile.  (Nash  v.  Mc- 
Namara,  30  Nev.  143,  16  L.  R.  A.  n.  s.  168,  144  Am.  St.  Rep.  694; 
Houghton  V.  Jones,  68  U.  S.  706;  17  L.  Ed.  503.) 

On  cross-examination  it  is  competent  to  call  out  anything  to  modify 


96  Cases  on  Evidence 

or  rebut  the  conclusion  or  inference  resulting  from  the  facts  stated  by 
the  witness  on  his  direct  examination.  (Wilson  v.  Wagar,  26  Mich. 
452.) 

There  was  no  good  reason  for  allowing  questions  so  flagrantly  lead- 
ing, such  as  the  hostility  or  lack  of  understanding  of  the  witness, 
and  this  testimony  does  not  come  under  any  of  the  exceptions  to  the 
rule  forbidding  the  putting  to  a  party  of  the  action  of  leading  ques- 
tions by  his  own  attorney.  As  an  excuse  for  asking  these  leading 
questions,  it  is  said  that  when  a  party  brings  out  new  matter  upon 
cross-examination  he  makes  the  witness  his  own,  and  that  leading 
questions  may  be  asked  upon  re-examination.  (People  v.  Court,  83 
N.  Y.  438.)  But  no  such  rule  applies  to  new  matter  which  is  prop- 
erly a  part  of  the  cross-examination  of  the  witness,  or  relating  to 
matters  testing  his  accuracy  or  veracity,  and  it  ought  not  to  apply  to 
a  party  to  the  action  when  he  is  being  interrogated  by  his  own  attor- 
ney. The  reasons  which  allow  a  litigant  to  call  the  opposing  party 
or  a  hostile  witness  to  the  stand  and  ply  him  with  leading  questions 
should  ordinarily  preclude  the  asking  of  leading  questions  on  his 
cross,  redirect  or  any  examination  by  his  own  attorney.  If  the 
bounds  of  proper  cross-examination  are  not  exceeded,  and  they  were 
not  in  this  instance,  the  witness  is  deemed  to  be  continually  the  wit- 
ness of  the  party  introducing  him.  (Stephen's  Digest  of  the  Law  of 
Evidence,  Chase  ed.  art.  127,  note  i.) 

The  questions  which  the  defendant's  attorney  asked  the  plaintiff 
relating  to  his  having  claimed,  in  an  action  brought  in  the  justice's 
court  and  in  the  original  complaint  in  this  action,  about  half  the 
amount  of  damage  he  claimed  on  the  trial  were  proper  cross-exam- 
ination, because  they  tended  to  test  his  accuracy  or  vary  his  testi- 
mony. (Stephen's  Dig.  of  Ev.  art.  129;  Jones  on  Ev,  sec.  822.)  They 
did  not  relate  to  new  matter  in  any  way  authorizing  his  own  attorney 
to  ply  him  with  leading  questions.  The  same  rule  applies  to  any 
witness,  but  for  greater  reasons  to  a  party  to  the  action.  Although 
on  redirect  examination  the  allowing  of  these  leadings  questions  was 
unfair  and  improper,  it  is  not  deemed  reversible  error,  and  especially 
in  view  of  the  conclusion  that  the  judgment  must  be  reduced  or  the 
case  remanded  for  a  new  trial,  under  the  claim  that  the  verdict  is 
excessive,  and  that  the  evidence  will  not  sustain  a  recovery  for  more 
than  $350.  After  it  had  been  shown  that  the  plaintiff  had  brought 
the  suits  originally  for  less  than  the  amount  of  damage  he  claimed 
upon  the  trial,  it  would  have  been  proper  for  his  attorney  to  have 
asked  him  to  explain  why  he  had  sued  for  less  than  he  was  claiming, 


Examination  op  Witnesses  97 

and,  if  the  leading  questions  had  been  disallowed,  as  they  should  have 
been,  no  doubt  by  direct  questions  the  plaintiff's  reasons  would  have 
been  elicited. 

Whether  leading  questions  should  be  allowed  is  a  matter  mostly 
within  the  discretion  of  the  trial  court,  and  any  abuse  of  the  rules 
regarding  them  is  not  ordinarily  a  ground  for  reversal.  (State  v. 
Williams,  31  Nev.  360;  i  Greenleaf,  Ev.  sec.  435;  Jones  Ev.  sec. 
819;  I  Wigmore,  Ev.  sec.  776;  Maguire  v.  People,  219  111.  16,  76 
N.  E.  67;  City  of  Witman,  122  Ind.  538,  23  N.  E.  796;  Gibson  v. 
Glizozinski,  76  111.  App.  400;  Peters  v.  U.  S.  94  Fed.  127,  36  C.  C.  A. 
105;  State  V.  Whalen,  148  M.  286,  49  S.  W.  989.)  But  the  improper 
allowing  of  leading  questions  may  be  so  prejudicial  as  to  require  re- 
versal. (Woodruff  V.  State,  72  Neb.  815,  loi  N.  W.  11 14;  State  v. 
Hazlett,  14  N.  D.  490;  105  N.  W.  617;  Turney  v.  State,  8  Smedes  & 
M.  104,  47  Am.  Dec.  75.) 

As  a  considerable  sum,  but  something  less  than  half  of  the  $350 
claimed  for  grazing  and  eating  the  grass,  may  have  been  allowed  by 
the  jury  for  grazing  and  eating  the  grass  on  the  Yerington  lands,  it 
is  evident  that  the  judgment  should  not  stand  for  the  full  $500 
awarded  by  the  verdict.  If  within  ten  days  the  plaintiff  files  in  this 
court  a  written  consent  thereto,  an  order  will  be  made  that  the  amount 
of  the  judgment  be  reduced  to  $350,  and  that  the  costs  of  the  appeal 
be  paid  by  the  plaintiff.  If  such  consent  is  not  filed,  the  judgment 
will  be  reversed,  and  the  case  remanded  for  a  new  trial. 


ROBINSON  V.  N.  Y.  ELEVATED  R.  R.  CO. 
1^3  N.  Y.  219.    (1903) 

BartlETT,  J.  This  is  the  usual  elevated  railroad  case  to  recover 
free  and  rental  damages,  and  under  the  unanimous  decision  the  de- 
fendant railway  companies  are  confined  to  the  argument  of  legal 
errors  duly  raised  by  exceptions. 

The  counsel  for  the  appellants  insist  that  the  learned  trial  judge 
admitted,  over  objection  and  exception,  evidence  regarding  sales  and 
rentals  of  specific  pieces  of  property  on  Pearl  street  other  than  the 
premises  in  suit,  in  violation  of  the  rule  laid  down  by  this  court  in 
the  case  of  Jamieson  v.  Kings  County  Elevated  Railway  Co.  (147 
N.  Y.  322,  325.)     Judge  Finch  there  said:     "The  plaintiff  sought 


98  Casbs  on  Evidence 

to  prove  the  evil  effect  of  the  road  in  diminishing  vakies  by  the 
process  of  calling  the  owners  of  property  in  the  vicinity  and  prov- 
ing, in  each  case,  what  the  particular  premises  owned  by  the  wit- 
ness rented  fort)efore  the  road  was  built  and  what  thereafter.  There 
were  objections  and  exceptions.  Such  a  process  is  not  permissible. 
Each  piece  of  evidence  raised  a  collateral  issue  (Gouge  v.  Roberts, 
53  N.  Y.  619),  and  left  the  court  to  try  a  dozen  issues  over  as 
many  separate  parcels  of  property.  We  have  held  such  a  mode  of 
proof  to  be  inadmissible.  (Huntington  v.  Attrill,  118  N.  Y.  365; 
Matter  of  Thompson,  127  N.  Y.  463.)  The  elevated  railroad  cases 
in  this  court,  to  which  the  plaintiff  refers  us,  give  no  warrant  for  such 
a  mode  of  proof,  but  indicate  that  the  general  course  and  current  of 
values  must  be  shown  by  persons  competent  to  speak,  leaving  to  a 
cross-examination  any  inquiry  into  specific  instances  if  such  be  deemed 
essential.  Almost  all  the  evidence  of  depreciation  was  of  the  erro- 
neous character,  and  we  cannot  say  that  it  may  not  have  worked  harm 
to  the  defendant." 

The  rule  thus  laid  down  was  followed  in  Witmark  v.  New  York 
Elevated  R.  R.  Co.  (149  N.  Y.  393)  and  other  cases. 

The  course  of  procedure  under  this  rule  may  be  thus  briefly  stated : 
Plaintiff  having  called  as  a  witness  an  expert,  is  permitted  to  show 
the  general  course  and  current  of  values  in  the  immediate  vicinity, 
leaving  to  a  cross-examination  any  inquiry  into  specific  instances  if 
such  be  deemed  essential,  the  reason  for  the  rule  being  that  to  per- 
mit evidence  of  the  rental  or  free  value  of  other  premises  would 
raise  in  each  case  a  collateral  issue  to  be  tried. 

When  the  plaintiff's  expert  witness  is  cross-examined  by  the  de- 
fendant as  to  specific  instances  it  is  competent  upon  a  redirect  exam- 
ination for  the  plaintiff  to  make  such  full  inquiry  as  he  may  be  ad- 
vised, as  to  each  one  of  the  specific  instances  brought  out  on  cross- 
examinations. 

In  the  case  at  bar  the  plaintiffs  swore  their  expert  and  conducted 
the  direct  examination  in  compliance  with  the  rule ;  on  cross-examina- 
tion the  defendants  made  inquiry  as  to  about  twelve  pieces  of  other 
property  in  the  vicinity  of  the  premises  in  suit ;  on  redirect  examination 
the  plaintiffs  examined  the  witness,  over  the  objection  and  exception 
of  the  defendants  in  regard  to  the  free  or  rental  value  of  some  six- 
teen additional   pieces  of  property   in   the  immediate   neighborhood. 

We  are  of  opinion  that  the  introduction  of  evidence  by  the  plain- 
tiffs in  regard  to  these  additional  pieces  of  property  in  the  immediate 
neighborhood  was  in  direct  violation  of  the  rule  we  have  discussed. 


Examination  of  Witnesses  99 

Parker,  Ch.  J.,  Gray,  O'Brien,  Haight,  Martin  and  Vann,  JJ., 
concur. 

Judgment  and  order  reversed,  etc. 


BUNNELL  V.  BUTLER. 
23  Conn.  65.     (1854) 


This  was  an  action  upon  a  promissory  note,  tried  before  the  Superior 
Court,  at  Hartford,  at  the  January  term,  1854. 

On  the  trial  to  the  jury,  the  defendant,  under  his  plea  of  set  off, 
introduced  in  evidence,  a  promissory  note,  executed  by  the  plaintiff 
and  two  others,  for  the  sum  of  $824.06,  payable  to  the  defendant, 
upon  which  he  claimed  more  was  due  him,  than  he  owed  the  plaintiff, 
and  that  he  had  a  right  to  recover  the  balance. 

The  jury  having  returned  their  verdict  in  favor  of  the  plaintiff, 
the  defendant  moved  for  a  new  trial,  claiming  that  the  judge  on  the 
circuit  erred  in  his  instructions  to  the  jury,  upon  the  subjects  of 
duress  and  confirmation,  and  in  limiting  the  number  of  impeaching 
witnesses;  and  the  questions  of  law  were  reserved  for  the  advice  of 
this  court. 

Waite,  J.  Upon  the  trial  of  this  case,  in  the  court  below,  the 
only  defense  made,  was  a  right  to  set  off  against  the  plaintiff's  de- 
mand, a  balance  claimed  to  be  due  upon  a  certain  promissory  note. 

Now  the  question,  whether  the  plaintiff  was  indebted  to  the  defend- 
ant, in  the  manner  claimed  by  him,  was  distinctly  submitted  to  the 
jury,  and  found  in  favor  of  the  plaintiff,  and  no  complaint  is  made, 
that  the  question  was  not  properly  made  or  fairly  submitted.  If  that 
question  has  been  correctly  determined,  then  it  is  immaterial,  whether 
the  defendant  attempted  to  set  off  the  note  or  the  original  indebted- 
ness.   In  neither  case  can  his  defense  prevail. 

In  the  next  place,  it  is  claimed  that  the  court  erred,  in  Hmiting  the 
number  of  impeaching  witnesses.  This,  however,  was  a  matter  within 
the  discretion  of  the  court.  It  would  be  absurd  to  hold  that  upon 
an  enquiry  of  that  sort,  depending,  in  a  great  measure,  upon  the 
opinion  of  witnesses,  a  party  has  the  right  to  examine  as  many  as  he 
pleases,  and  that  the  court  and  jury  are  bound  to  sit  and  hear  them 
without  any  power  to  interfere. 

There  must  necessarily  be  a  limit  to  such  enquiries,  and  it  is  for 


100  Cases  on  Evidence 

the  court  to  prescribe  it.-  We  are  not,  however,  to  be  understood  as 
saying,  that  in  all  cases,  the  number  of  impeaching  witnesses  is  to  be 
the  same,  as  that  allowed  in  the  present  case.  Ordinarily  that  num- 
ber ought  to  be  deemed  sufficient  to  enable  the  triers  to  pass  upon 
the  credit  of  the  principal  witness.  Much,  however,  will  depend  upon 
the  circumstances  of  the  case,  and  the  importance  of  his  testimony. 
If  it  should  appear,  that  the  case  would  probably  turn  upon  the  degree 
of  credit  to  be  given  to  it,  a  more  extended  enquiry,  as  to  his  char- 
acter for  truth,  might  properly  be  allowed. 

On  the  other  hand,  if  his  testimony  should  be  unimportant,  hav- 
ing little  or  no  effect  upon  the  merits  of  the  case,  but  little  time  ought 
to  be  consumed  by  such  an  enquiry. 

Nor  do  we  mean  to  say,  that  if  it  should  be  made  to  appear  that 
in  consequence  of  such  an  order,  a  party  has  manifestly  suffered 
by  it,  this  court  will  not  grant  a  new  trial.  But,  in  the  present  case, 
we  discover  nothing  indicating  that  the  discretion  of  the  court  was 
not  fairly  and  properly  exercised. 

For  these  reasons  we  do  not  advise  a  new  trial. 

In  this  opinion  the  other  judges  concurred,  except  Storrs,  J.  who 
tried  the  cause  in  the  court  below,  and  was  disqualified. 

New  trial  not  to  be  granted. 


BECKER  et  al..  Assignees  v.  KOCK,  Sheriff,  Appellant. 
104  N.  Y.  394.     (1887) 

Peckham,  J.  This  action  was  brought  by  the  plaintiffs  as  assignees 
for  the  benefit  of  creditors  of  one  Exstein,  to  recover  from  the  de- 
fendant the  possession  of  some  personal  property  amounting  in  value 
to  about  $4,000,  or  in  default  thereof  to  recover  such  value. 

The  court  directed  a  verdict  for  the  plaintiffs,  and  if,  therefore, 
there  was  evidence  enough  to  authorize  a  submission  of  the  question 
of  fraud  to  the  jury  the  judgment  must  be  reversed.  We  think  there 
was,  and  had  it  not  been  for  the  rule  of  law  adopted  by  the  court 
below,  we  suppose  that  court  would  have  been  of  the  same  opinion. 
That  rule  was  that  as  the  defendant  called  a  witness  by  whom  he 
attempted  to  prove  the  fraud,  and  as  that  witness  denied  it,  the  de- 
fendant was  bound  by  that  denial,  in  the  absence  of  contradiction  by 


Examination  of  Witnesses  ioi 

some  other  witness,  even  though  the  jury  might  think  some  parts  of 
the  evidence  of  the  witness  clearly  showed  its  existence. 

To  show  exactly  how  the  question  arose  and  what  was  decided  by 
the  court,  some  reference  must  be  made  to  the  testimony,  although 
it  will  be  unnecessary  to  allude  to  it  all. 

The  assignor,  Exstein,  was  a  merchant  engaged  in  a  large  business 
in  Buffalo.  He  kept  regular  books  of  account  in  his  business,  which 
were  produced  upon  the  trial,  and  he  was  called  as  a  witness  for  the 
defendant  and  gave  evidence  in  relation  to  the  books  and  upon  other 
matters. 

The  court  held,  in  substance,  that  the  books  of  the  witness  Exstein 
showed  a  prima  facie  case  of  an  indebtedness  of  the  witness  in  the 
amounts  therein  appearing,  and  to  the  persons  therein  mentioned,  and 
the  witness  said  they  were  correct.  He  then  stated  what  has  already 
been  alluded  to  as  to  those  entries  made  on  the  sixteenth  of  October, 
and  continued  by  explaining  the  facts  upon  which  they  were  based. 
This  explanation,  the  court  said,  was  totally  uncontradicted  by  any 
other  witness,  and  defendant  was,  therefore,  bound  by  what  Exstein 
said  on  that  subject,  for  the  reason  that  he  could  not  discredit  or 
impeach  him,  and  must  take  what  he  said  as,  under  the  circumstances 
of  the  case,  true. 

If  that  were  the  true  rule,  the  court  was  correct  in  directing  a 
verdict.  The  General  Term,  it  must  be  presumed,  also  took  the  same 
view  of  the  case  in  directing  judgment  for  the  plaintiffs,  without 
delivering  any  written  opinion. 

The  general  rule  prohibiting  the  impeachment  or  discrediting  of 
a  witness  by  the  party  calling  him  was  extended  too  far  in  this  case. 
Here  was  an  issue  of  fraud  in  the  making  of  an  assignment  by  the 
assignor,  and  the  defendant,  in  order  to  prove  its  existence,  called 
the  very  man  as  a  witness  whom  he  alleged  was  guilty  of  the  fraud. 
He  might  well  be  regarded,  therefore,  as  an  adverse  witness,  whom 
the  party  by  the  exigencies  of  his  case  was  obliged  to  call. 

With  regard  to  such  witnesses  it  is  well  settled  that  all  the  rules 
applicable  to  the  examination  of  other  witnesses  do  not  in  their  strict- 
ness apply.  An  adverse  witness  may  be  cross-examined,  and  lead- 
ing questions  may  be  put  to  him  by  the  party  calling  him,  for  the 
very  sensible  and  sufficient  reason  that  he  is  adverse  and  that  the 
danger  arising  from  such  a  mode  of  examination  by  the  party  calling 
a  friendly  or  unbiased  witness  does  not  exist. 

What  favorable  facts  the  party  calling  him  obtained  from  such  a 
witness  may  be  justly  regarded  as  wrung  from  a  reluctant  and  unwill- 


I02  Cases  on  Evidence 

ing  man,  while  those  which  are  unfavorable  may  be  treated  by  the 
jury  with  that  degree  of  belief  which  they  may  think  is  deserved, 
considering  their  nature  and  the  other  circumstances  of  the  case. 

Starkie,  one  of  the  ablest  and  most  philosophical  of  English  writers 
on  this  branch  of  the  law,  in  speaking  of  a  reluctant  or  adverse  wit- 
ness, uses  almost  the  precise  language  stated  and  which  has  been 
substantially  quoted  from  him.  (Starkie  on  Ev.  [9th  ed.]  m.  p.  248.) 
Sometimes  rather  loose  language  has  been  indulged  in  to  the  general 
effect  that  a  party  cannot  impeach  his  own  witness,  but  when  an  ex- 
amination is  made  as  to  the  limits  of  the  rule  the  result  will  be  found 
to  be  that  it  only  prohibits  this  impeachment  in  three  cases,  viz. : 
(i)  the  calling  of  witnesses  to  impeach  the  general  character  of 
the  witness;  (2),  the  proof  of  prior  contradictory  statements  by  him; 
and  (3)  a  contradiction  of  the  witness  by  another  where  the  only 
effect  is  to  impeach  and  not  to  give  any  material  evidence  upon  any 
issue  in  the  case.  (Lawrence  v.  Barber,  5  Wend.  301-305;  People 
V.  Saffor,  5  Den.  112;  Thompson  v.  Blanchard,  4  N.  Y.  303-311; 
Coulter  v.  Express  Co.,  56  N.  Y.  585;  2  Starke  on  Ev.  (9  Am.  ed.), 
m.  p.  244-250;  2  Phil,  on  Ev.  (C.  and  H.  &  Ed.  notes),  m.  p.  981, 
982,  983  and  note  602;  i  Green  on  Ev..  sec.  442.)  In  regard  to  the 
first  class  the  rule  has  been  stated  to  rest  upon  the  theory  that  when 
a  party  calls  a  witness  he  presents  him  to  the  jury  as  worthy  of  be- 
lief, and  to  allow  him  to  call  witnesses  thereafter  to  impeach  his  gen- 
eral character  as  a  man  would  be  to  permit  an  experiment  to  be 
made  upon  the  jury  by  producing  a  person  as  worthy  of  belief  (whom 
he  knows  and  has  witnesses  to  prove  to  be  the  contrary),  and  if  his 
evidence  be  favorable,  to  get  the  benefit  of  it,  and  if  the  reverse,  to 
overwhelm  it  by  the  impeaching  witnesses. 

In  such  a  case  as  this,  however,  there  is  no  deception.  The  de- 
fendant calls  the  very  man  he  accuses  of  the  fraud  as  a  witness  to 
prove  it  and  says,  in  effect,  to  the  jury,  that  such  evidence  as  the 
witness  gives  which  tends  to  show  the  perpetration  of  the  fraud  al- 
leged is  forced  from  him  by  the  exigencies  of  the  case  and  the 
surrounding  facts  which  cannot  be  denied,  while  that  which  he  gives 
that  looks  towards  an  explanation  of  the  fraud  shall  give  such  faith 
to  as  under  all  the  facts  in  the  case  they  may  think  it  entitled  to. 

As  to  the  second  class,  in  which  an  impeachment  is  forbidden,  the 
authorities  in  England  were  in  conflict,  many  of  the  judges  thinking 
it  allowable  to  prove  prior  contradictory  statements  by  a  witness,  but 
the  weight  of  authority  was  against  it,  thereby  creating  the  occasion 
for  an  interference  by  the  legislature  with  the  law  of  evidence,  which 


Examination  of  Witnesses  103 

passed  an  act  permitting  just  such  evidence  under  certain  restrictions. 
(See  C.  L.  Pro.  act  of  1854,  17  &  18  Vic,  chap.  125,  paragraph  22.) 
The  non-admissibiHty  of  such  evidence  in  the  courts  of  this  state 
is,  of  course  not  open  to  discussion.  It  is  alluded  to  only  to  show 
the  opinion  of  the  EngHsh  Parliament  (in  matters  of  this  nature 
almost  exclusively  guided  by  lawyers),  upon  this  question  of  impeach- 
ing one's  own  witness,  and  the  readiness  of  that  body  to  alter  the 
law  of  evidence  in  the  direction  of  what  seemed  to  it  greater  oppor- 
tunity of  ascertaining  and  administering  that  for  which  all  courts  are 
instituted,  viz.,  truth  and  justice. 

The  third  of  the  above  classes,  where  no  impeachment  is  allowed, 
is  plainly  set  forth  in  several  of  the  cases  and  text-books  above  cited. 

It  is  not  admissible,  even  in  the  case  of  a  witness  called  by  the 
other  side,  to  impeach  him  by  proof  of  prior  contradictory  state- 
ments on  immaterial  or  collateral  issues,  and  there  is  not  much  dif- 
ference in  the  two  cases,  and,  therefore,  no  reason  why  it  should  be 
allowed  with  reference  to  one's  own  witness.  But  all  the  cases  concur 
in  the  right  of  a  party  to  contradict  his  own  witness  by  calling  wit- 
nesses to  prove  a  fact  (material  to  the  issue)  to  be  otherwise  than 
as  sworn  to  by  him,  even  when  the  necessary  effect  is  to  impeach  him. 

Why  should  not  the  right  exist  to  show  that  a  portion  of  the  evi- 
dence of  your  own  witness  is  untrue,  by  comparing  it  with  another 
portion  of  the  evidence  of  the  same  witness  and  with  the  other  facts 
in  the  case? 

It  is  a  good  general  rule  that  the  credibility  of  a  witness  is  matter 
for  the  jury,  and  the  fewer  technical  obstructions  there  are  to  the 
practical  operation  of  that  rule  the  better. 

We  think  that  the  whole  evidence  of  Exstein  in  this  case  should 
have  been  submitted  to  the  jury  for  them  to  pass  upon  its  credibility, 
and  that  they  were  at  liberty  to  believe  that  portion '  which  tended 
to  show  the  debts  to  be  fictitious  and  to  disbelieve  the  explanation, 
or  that  they  might  regard  it  as  sufficient,  just  as  in  their  judgment 
intelligently  and  honestly  exercised,  they  might  determine. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs  to 
abide  the  event. 

All  concur.       Judgment  reversed. 


104  Cases  on  Evidence 

O'EDENS  V.  SCHUMERS. 

JI2  III.  263.    (1884) 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court: 
This  was  an  action  of  assumpsit,  brought  by  Schumers,  in  the  Cir- 
cuit Court  of  Cook  county,  against  J.  H.  Tedens  and  T.  Thormahhn. 
There  was  filed  the  general  issue,  under  which  a  trial  was  had  re- 
sulting in  a  verdict  and  a  judgment  against  defendants  for  $1379. 
The  verdict,  as  returned  by  the  jury  was  for  $2758,  but  to  avoid  a 
new  trial  plaintiff  remitted  one-half  and  took  judginent  for  the  bal- 
ance. On  an  appeal  to  the  Appellate  Court  for  the  First  District 
the  judgment  was  affirmed,  and  defendants  bring  the  record  to  this 
court,  and  ask  a  reversal. 

On  the  trial,  appellee  testified  to  his  theory  of  the  case.  Appel- 
lants, on  the  stand,  contradicted  him,  and  testified  to  their  version  of 
the  matter.  In  some  portions  of  this  evidence  they  are  corroborated 
by  other  witnesses.  Appellee,  to  support  his  testimony,  called  a  num- 
ber of  witnesses  to  prove  his  general  character  for  truth  and  veracity, 
to  which  appellants  objected,  but  the  court  admitted  the  evidence, 
and  they  excepted,  and  urge  its  admission  as  error.  Appellee  claims 
this  evidence  was  admissible  on  the  ground  that  his  character  for 
truth  and  veracity  was  attacked  by  being  contradicted  by  other  wit- 
nesses. This  is,  we  think,  a  misconception  of  the  rule.  As  we  un- 
derstand the  rule  of  evidence,  a  witness  cannot  call  witnesses  to  sup- 
port his  general  character  for  truth  and  veracity  until  it  is  assailable. 
Mere  contradictions,  or  different  versions  by  witnesses,  do  not  jus- 
tify the  application  of  the  rule  that  he  may  call  witnesses  to  support 
his  character  for  truth.  When  witnesses  are  called  who  may  say  his 
general  character  is  bad,  then  he  may  call  witnesses  in  support  of 
his  general  character.  Before  he  can  do  so  his  general  character 
must  be  attacked.  If  the  practice  sanctioned  the  calling  of  witnesses 
to  prove  general  character  whenever  a  witness  is  contradicted,  it 
would  render  trials  interminable.  The  greater  portion  of  the  time 
of  courts  would  be  liable  to  be  engaged  in  the  attack  and  support  of 
the  character  of  witnesses.  If  permitted,  each  of  the  contradicting 
witnesses  would  have  the  same  right,  and  not  only  so,  but  all  of 
the  supporting  witnesses  on  each  side  contradicting  each  other  would 
be  entitled  to  the  same  privilege.  It  is  thus  seen  that  the  rule  must 
be  limited  to  cases  where  witnesses  are  called  to  impeach  the  general 
character  of  a  witness,  otherwise,  it,  instead  of  reaching  truth  by 


Examination  of  Witnesses  10$ 

the  verdict,  would  tend  to  stifle  it  under  a  large  number  of  side  issues, 
calculated  to  obscure  and  not  to  elucidate  them.  It  may  be  that  some 
courts  have  made  exceptions  to  the  rule,  but  we  are  not  inclined  to 
adopt  them  as  the  rule.  Many  cases  referred  to  were  where  the 
witness  was  charged  with  crime  by  other  witnesses,  when  it  was  held 
he  might  call  witnesses  to  support  his  character  for  honesty. 

It  has  never  been  the  practice  in  this  State  to  permit  a  witness 
in  support  of  his  character  for  veracity,  to  prove  that  he  has  been 
honest  in  his  dealings,  or  moral  and  free  from  vice.  It  does  not  fol- 
low that  because  a  man  deals  honestly,  and  is  otherwise  moral,  he  is 
therefore  truthful.  Nor  is  it  believed  that  because  a  man  is  not  fair 
in  his  dealings,  or  is  immoral,  he  is  therefore  untruthful.  We  are 
aware  that  some  courts  have  reached  and  announced  conclusions  that 
immorality  and  unfair  dealing  establish  a  want  of  credibility  for 
truth,  and  that  morality  and  fairness  in  his  dealings  establish  his 
character  for  veracity.  We  presume  no  one  would  contend  that 
evidence  of  general  good  character  for  truth  and  veracity  would  be 
admissible  to  disprove  a  charge  of  murder,  robbery  or  larceny.  In 
the  charge  of  murder,  proof  that  the  accused  had  borne  a  good  char- 
acter as  a  peaceable,  orderly  and  quiet  citizen,  in  a  doubtful  case 
might  have  a  strong  tendency  to  exculpate  the  accused  from  the 
charge,  and  such  evidence  is  admissible  in  such  cases.  So  in  cases 
on  the  charge  of  robbery  or  larceny,  evidence  of  general  character  for 
honesty  and  uprightness  is  admissible  in  doubtful  cases,  but  not  good 
character  for  truth  and  veracity  or  even  other  traits  of  character. 
This  evidence  was  only  calculated  to  confuse  the  issue  and  mislead 
the  jury  in  their  finding,  and  should  not  have  been  introduced. 

For  the  errors  indicated,  the  judgment  of  the  Appellate  Court  is 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


MASSEY  V.  FARMERS  NAT.  BANK  OF  VIRGINIA. 

104  III.  327.     (1882) 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court: 
This  was  a  suit  brought  by  the  Farmers'  National  Bank  of  Vir- 
ginia, against  Henry  C.  Massey,  Henderson  E.  Massey,  and  George 
W.  Laurie,  upon  a  promissory  note,  purporting  to  have  been  executed 
jointly  and  severally  by  the  defendants  to  the  bank.    Two  trials  were 


io6  Cases  on  Evidence 

had,  in  which  the  jury  failing  to  agree,  they  were  discharged.  The 
plaintiff  afterward  dismissed  its  suit  as  to  the  defendant  Laurie, 
and  a  third  trial  was  entered  upon,  on  the  second  day  of  which,  on 
motion  of  the  plaintiff,  the  default  as  to  Henry  C.  Massey  was  set 
aside  and  the  suit  dismissed  as  to  him,  and  subsequently  a  verdict 
was  rendered  against  Henderson  E.  Massey  for  $4982.42,  upon  which, 
after  overruling  a  motion  for  a  new  trial,  judgment  was  entered, 
which  was  affirmed  on  appeal  to  the 'Appellate  Court  for  the  Third 
District,  and  an  appeal  taken  by  Massey  to  this  court.  There  are 
various  errors  assigned. 

One  Gatton,  a  witness  for  plaintiff,  testified  that  some  years  be- 
fore, he  had  seen  Henderson  E.  Massey  write,  and  that  it  was  his 
impression  that  the  signature  of  the  name  of  said  Massey  to  the  note 
in  question  was  in  his  handwriting.  After  then  stating,  on  cross- 
examination,  that  it  was  six  or  seven  years  since  he  saw  Massey  write, 
and  that  he  did  not  know  that  "he  could  pick  out  his  signature  in 
the  bank,"  defendant's  counsel  handed  the  witness  a  paper  having 
written  on  it  the  name  "H.  E.  Massey"  sixteen  times,  and  asked  the 
witness  to  point  out  the  genuine  signatures,  if  any  were  genuine.  The 
court  excluded  the  question,  and  exception  is  taken  to  this.  It  is 
urged  that  this  question  was  proper  on  cross-examination,  for  the 
purpose  of  testing  the  knowledge  of  the  witness,  and  as  authority 
therefor  reference  is  made  to  i  Wharton  on  Evidence,  sec.  710,  where 
the  author  says :  "There  is  little  question  that  a  witness  may,  on 
cross-examination,  be  tested  by  putting  to  him  other  writings  not 
admitted  in  evidence  in  the  case,  and  asking  him  whether  such  writ- 
ings are  in  the  same  hand  with  that  in  litigation."  Without  stop- 
ping to  inquire  as  to  the  general  correctness  of  this  observation,  and 
especially  where  the  rule  obtains,  as  in  this  state,  that  evidence  of 
the  genuineness  of  handwriting  based  on  comparison  of  hands,  is  not 
admissible,  we  think  that  at  least  with  reference  to  test  papers  got 
up  for  the  occasion,  as  in  the  present  case,  there  was  no  error  in  not 
allowing  the  cross-examination  proposed.  The  same  author,  further 
on,  in  sec.  715,  remarks:  "We  have  already  seen  that  a  party  can  not 
make  testimony  for  himself  by  writing  specimens  for  the  instruction 
of  witnesses  afterwards  to  be  called,  as  to  his  handwriting.  By  the 
same  reasoning  a  party  cannot  be  permitted  to  get  up  in  this  way 
test  papers  to  be  used  subsequently  for  comparison  of  hands."  And 
although  the  paper  here  offered  was  not  to  be  used  professedly  for 
comparison  of  hands,  we  think  its  admission  for  the  purpose  declared 
would  be  alike  objectionable.     See  Griffits  v.  Ivery,  11  A.  &  E.  ^22, 


Examination  of  Witn^ss^s  107 

and  King  v.  Donahue,  100  Mass.  155.  In  the  former  case,  where 
there  was  the  disallowance  of  a  like  course  of  cross-examination  for 
the  purpose  of  testing  the  witness'  knowledge,  Coleridge,  J.  said: 
"We  must  not  allow  papers  which  are  not  evidence  in  the  cause  to 
be  let  in  for  any  purpose  whatever. 

Henderson  E.  Massey  was  a  witness,  in  his  own  behalf  on  the 
trial,  and  testified  to  the  non-execution  of  the  note  by  him.  One 
Beard,  called  as  a  witness  on  the  part  of  the  plaintiff,  testified  that 
the  general  reputation  of  the  defendant,  Henderson  E.  Massey,  for 
truth  and  veracity  was  very  good.  Against  the  objection  of  defend- 
ant's counsel,  the  court  then  permitted  this  question  to  the  witness: 
"From  that  reputation  would  you,  or  not,  in  a  case  where  he  was 
personally  interested,  believe  him  under  oath?"  to  which  the  witness 
made  answer:  "If  Mr.  Massey  was  interested,  I  would  hesitate 
to  believe  him."  To  seven  other  witnesses,  called  by  the  plaintiff,  the 
same  questions  against  defendant's  objection,  were  allowed  as  the 
one  to  the  witness  Beard,  who  made  substantially  the  same  answer  as 
he  did.  This  is  complained  of  as  error.  In  Frye  v.  Bank  of  Illinois, 
II  111.  369,  this  court  laid  down  as  the  rule,  that  the  proper  question 
to  be  put  to  a  witness  called  to  impeach  another  is,  whether  he  knows 
the  general  reputation  of  the  person  sought  to  be  impeached  among 
his  neighbors  for  truth  and  veracity,  and  if  this  question  be  answered 
affirmatively,  the  witness  may  then  be  inquired  of  as  to  what  that 
reputation  is,  and  whether,  from  that  reputation,  he  would  believe 
him  on  oath.  This  latter  inquiry  as  to  belief  is  the  English  rule  upon 
the  subject  which  we  have  adopted.  Mr.  Greenleaf,  after  stating  the 
English  rule,  remarks  that  in  the  American  courts  perhaps  the  weight 
of  authority  is  now  against  permitting  the  witness  to  testify  as  to 
his  own  opinions.  This  is  a  consideration  against  extending  such  rule 
of  inquiry  as  to  the  witness*  own  belief  beyond  the  limit  for  which 
it  has  the  sanction  of  authority.  This  mode  of  impeachment  is  con- 
fined to  general  reputation.  Evidence  is  not  admitted  of  particular 
facts,  and  the  opinion  allowed  to  be  expressed  is  to  be  based  solely 
on  general  reputation,  and  not  on  particular  facts.  The  opinions 
which  were  permitted  to  be  given  in  the  present  case  were  not  founded 
upon  general  reputation  alone,  but  upon  general  reputation,  and  in- 
terest in  the  case.  Now,  the  effect  of  interest  upon  the  credibility 
of  testimony  is  solely  for  the  consideration  and  judgment  of  the 
jury,  and  no  witness  should  be  allowed  to  pronounce  upon  it.  The 
naked  question,  whether,  from  defendant's  interest  in  the  case,  the 
witness  would  believe  him  on  oath,  no  one  would  pretend  to  justify. 


io8  Cases  on  Evidence 

There  would  be  the  same  objection,  though  less  in  degree,  to  such  an 
inquiry,  based  upon  general  reputation  for  truth,  and  interest  in  the 
case.  Both  questions  would  be  improper,  as  calling  for  an  expres- 
sion of  opinion  as  to  the  effect  of  personal  interest  upon  the  credi- 
bility of  testimony, — ^in  the  one  case,  as  to  the  effect  of  interest  alone ; 
in  the  other,  as  to  its  effect  in  conjunction  with  another  discrediting 
circtmistance.  There  should  not  be  given  the  opinions  of  witnesses 
upon  the  discrediting  effect  of  interest,  in  whole  or  in  part,  upon 
testimony.  Here,  the  question  laid  down  by  the  books  as  the  proper 
one  in  such  case,  whether,  from  the  defendant's  general  reputation 
for  truth  and  veracity,  the  witness  would  believe  defendant  on  oath, 
was  not  put;  but  the  question  put  was  whether,  from  such  reputation 
they  would  so  believe  him  in  a  case  where  he  was  personally  inter- 
ested, asking  an  opinion  based  in  part  on  interest.  The  question  has 
not  the  warrant  of  authority,  and  was  improper. 

To  what  extent  the  consideration  of  personal  interest  influenced 
the  opinions  expressed,  we  have  no  means  of  knowing.  The  form 
of  the  answer,  "if  Mr.  Massey  was  interested,"  etc.,  would  indicate 
that  defendant's  interest  in  the  case  had  controlling  force.  We  can- 
not say  defendant  was  not  prejudiced  by  the  improper  question  put, 
and  that  the  answer  would  not  have  been  different  and  less  unfavor- 
able for  the  defendant  had  the  proper  question  been  asked.  The 
credibility  of  defendant  as  a  witness  was  a  vital  matter.  Other  wit- 
nesses testified  as  to  their  opinions  of  defendant's  signature  from 
having  seen  him  write.  Defendant  knew  whether  the  signature  was 
his  own  or  not,  and  testified  from  actual  knowledge.  Improper  tes- 
timony, unfavorable  to  his  credibility,  was  calculated  to  do  him  great 
harm.  Where  a  party  gives  testimony  in  his  own  cause,  the  admitting 
of  many  witnesses  to  give  their  opinions  in  any  respect  as  to  the 
effect  of  his  personal  interest  in  diminishing  his  credibility,  is  placing 
such  testimony  under  an  unfair  disadvantage.  We  hold  that  there 
was  error  in  the  allowance  of  the  question. 

For  the  error  indicated,  the  judgment  must  be  reversed,  and  the 
cause  remanded. 

Judgment  reversed. 


Examination  op  Witnesses  109 

STOLP  V.  BLAIR. 
68  III.  541.    (187s) 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court: 

This  was  an  action  of  assumpsit,  brought  by  Blair  against  Stolp, 
to  recover  $500,  money  alleged  to  have  been  loaned  by  the  former  to 
the  latter.  The  plaintiff  below  recovered,  and  the  defendant  ap- 
pealed. 

Three  certain  rulings  of  the  court  below  in  the  admission  of  evi- 
dence are  assigned  for  error,  as  also  that  the  verdict  was  contrary 
to  the  evidence. 

The  other  ruling  excepted  to  was,  in  the  admission  of  the  following 
testimony  of  the  witness  Bailes:  "I  borrowed  $10  of  Blair;  am  not 
positive  about  date,  but  think  it  was  on  Friday  of  that  week  (of 
Sept.  1 8th  1871).  I  spoke  of  giving  a  note  for  the  money  I  borrowed, 
and  Blair  said :  'I  loaned  $500  to  Mr.  Stolp,  and  did  not  take  a  note ; 
I  would  not  think  of  taking  a  note  of  you  for  $10.' " 

The  witness  further  stated,  Blair  said  he  let  Henry  Stolp  have 
$500.  The  18th  of  September,  the  day  of  the  alleged  loan,  was  Mon- 
day. It  is  contended  by  appellee's  counsel  that  this  statement  of 
Blair,  of  his  loan  of  $500  to  Stolp,  was  properly  admitted  as  re- 
butting testimony  to  sustain  Blair,  after  the  defendant  below  had  at- 
tempted to  impair  the  credibility  of  Blair  on  cross-examination,  and 
by  testimony  contradicting  him. 

This  court,  in  Gates  v.  The  People,  14  111.  434,  recognized  the 
existence  of  a  conflict  of  authority  upon  the  question  whether  the 
former  declarations  of  a  witness,  whose  credibility  is  attacked,  may 
be  given  in  evidence  to  corroborate  his  testimony,  but  did  not  find 
it  necessary  in  that  case  to  determine  in  regard  to  the  general  rule, 
as  that  case  came  within  one  of  the  admitted  exceptions  to  the  rule 
of  exclusion. 

We  find  the  decided  weight  of  authority  to  be,  that  proof  of  dec- 
larations made  by  a  witness  out  of  court,  in  corroboration  of  testi- 
mony given  by  him  on  the  trial  of  a  cause,  is,  as  a  general  rule,  in- 
admissible, even  after  the  witness  has  been  impeached  or  discredited  ; 
and  we  are  satisfied  with  the  correctness  of  the  rule.  The  following 
may  be  referred  to  among  the  authorities  sustaining  such  rule:  2 
Phil.  Ev.  5th  ed.  973;  marginal;  i  Stark.  Ev.  147;  i  Greenl.  Ev.  sec. 
469;  Robb  et  al.  v.  Hackley  et  al.  23  Wend.  50;  Gibbs  v.  Tinsley,  13 
Verm.  208;  Ellicott  v.  Pearl,  10  Pet.  412;  Conrad  v.  Griffey,  11  How. 


no  Cases  on  Evidence 

480.  A  collection  of  cases  upon  the  subject,  on  either  side,  will  be 
found  in  the  notes  to  2  Phillipps,  by  Cowen  &  Hill,  979,  marginal,  and 
in  the  case  cited  from  11  Howard. 

In  some  places,  as  in  England  and  New  York,  the  rule  has  been 
adopted  in  the  place  of  a  prior  contrary  one.  As  recognized  in  Gates 
V.  The  People,  supra,  the  authorities  agree  that  the  former  statements 
of  the  witness  may,  in  some  instances  be  introduced  for  the  purpose 
of  sustaining  his  testimony;  as,  where  he  is  charged  with  testifying 
under  the  influence  of  some  motive  prompting  him  to  make  a  false 
statement,  it  may  be  shown  that  he  made  similar  statements  at  a 
time  when  the  imputed  motive  did  not  exist,  or  when  motives  of 
interest  would  have  induced  him  to  make  a  diflFerent  statement  of 
facts.  So,  in  contradiction  of  evidence  tending  to  show  that  the  wit- 
ness' account  of  the  transaction  was  a  fabrication  of  a  recent  date, 
it  may  be  shown  that  he  gave  a  similar  account  before  its  eiTect  and 
operation  could  be  foreseen.  In  some  cases  the  admission  of  the 
confirmatory  statement  has  been  confined  to  the  sole  case  of  an  im- 
peachment by  a  contradictory  statement  of  the  witness ;  and  again, 
such  confirmatory  statements  have  been  held  to  be  especially  not  ad- 
missible, if  they  were  made  subsequent  to  the  contradictions  proved 
on  the  other  side  as  in  Ellicott  v.  Pearl,  supra,  and  Conrad  v.  Griflfey, 
supra. 

In  the  case  under  consideration,  there  were  no  contradictory  state- 
ments of  Blair  introduced  in  evidence.  There  was  nothing  further 
in  the  way  of  impeachment  than  that  it  was  sought  to  impeach  him 
on  cross-examination,  and  that  there  was  contradictory  testimony  to 
his  in  the  case.  The  statement  of  Blair  which  was  admitted,  does 
not  come  within  any  of  the  admitted  exceptions  to  the  general  rule  of 
inadmissibility.  It  was  her  mere  declaration  of  the  fact  made  not 
under  oath,  which  was  not  evidence.  We  are  of  opinion  that,  on  prin- 
ciple and  authority,  it  was  not  competent,  and  was  wrongly  received. 
As  we  find  this  a  sufficient  ground  for  reversal,  we  will  express  no 
opinion  upon  the  weight  of  the  evidence. 

The  judgment  is  reversed  and  the  cause  remanded. 

Judgment  reversed. 


Examination  of  Witnesss^s  in 

C.  R.  I.  &  P.  R.  R.  CO.  V.  BELL,  Admr. 
70  III.  102.     (1873) 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court: 

The  plaintiff  in  the  court  below  commenced  two  actions  against  the 
railroad  company,  founded  upon  a  collision  between  a  train  on  the 
defendant's  railroad  and  the  wagon  and  team  of  John  Boyd,  deceased, 
the  plaintiff's  intestate,  at  a  highway  crossing  near  Minooka,  in  Grundy 
county.  One  action  was  for  damages  sustained  by  the  death  of  Boyd, 
and  the  other  for  damages 'resulting  from  the  killing  of  his  horses 
and  the  destruction  of  his  wagon  and  harness. 

The  declaration  alleged,  as  the  negligence  of  the  defendant  which 
caused  the  collision,  an  omission  to  ring  the  bell  or  blow  the  whistle 
for  a  distance  of  80  rods  before  reaching  the  crossing,  as  required 
by  statute.    The  cases  were  consolidated. 

Verdicts  and  judgments  were  rendered  in  favor  of  the  plaintiff  in 
both  cases,  and  the  defendant  has  appealed. 

It  is  urged  that  the  court  erred  in  excluding  the  testimony  of  wit- 
nesses as  to  what  Meade,  one  of  the  plaintiff's  witnesses,  said,  at 
the  time  of  the  accident,  in  regard  to  Boyd's  habit  of  going  home 
intoxicated. 

The  testimony  was  not  admissible  for  the  purpose  of  impeaching 
Meade,  as  he  had  given  no  evidence  upon  that  subject.  It  is  true, 
he  was  asked,  on  cross-examination,  whether  he  had  not  made  such  a 
statement,  and  denied  it.  But  the  question  was  incompetent,  as  it 
was  not  relevant  to  any  testimony  which  the  witness  had  given,  and 
his  answer,  it  being  as  to  a  collateral  matter,  had  to  be  taken  as  con- 
clusive. It  was  not  admissible  afterward  to  contradict  him  in  that 
respect,  and  thus  introduce  into  the  case  his  unsworn  statements. 
If  the  defendant  sought  any  statement  of  Meade  upon  that  subject, 
it  should  have  examined  him  as  a  witness,  and  got  his  sworn  state- 
ment. 

It  is  insisted  that  the  court  below  erred  in  excluding  evidence 
of  what  were  the  personal  habits  of  the  deceased  when  intoxicated. 
The  inquiry  was  general,  without  any  specifications  of  the  sort  of 
habits  sought  to  be  proved. 

We  think  the  court  was  justified  in  rejecting  the  offered  testimony, 
without  some  particularizing  of  the  habits  offered  to  be  proved,  so 
that  it  might  be  seen  that  they  were  such  as  that  the  proof  of  them 
would  have  a  legitimate  bearing  upon  the  issue. 


112  Cases  on  Evidence 

It  is  insisted  that  the  verdict  was  manifestly  against  the  evidence 
and  the  instructions  of  the  court. 

We  are  of  opinion  that  the  verdict  was   manifestly  against  the 
evidence,  and  that  the  judgment  should  be  reversed. 

Judgment  reversed. 


HILL  v.  MONTGOMERY. 
184  III.  220,    (1900) 


Mr.  Justice  Craig  delivered  the  opinion  of  the  court: 
At  the  May  term,  1895,  of  the  Circuit  Court  of  Vermilion  county 
one  John  Montgomery  was  convicted  of  grand  larceny  and  sentenced 
to  the  penitentiary.  Mary  A.  Montgomery,  his  wife,  the  appellee, 
employed  appellant  a  practicing  attorney  at  the  Vermilion  county  bar, 
to  obtain  for  her  a  divorce  from  Montgomery  on  ground  that  he 
had  been  convicted  of  a  felony.  On  September  15,  1896,  Hill  filed  a 
bill  on  her  behalf  for  divorce.  Summons  was  issued  and  served  on 
Montgomery,  and  at  the  October  term,  1896,  a  default  was  entered 
against  him.  At  the  October  term,  1896,  the  cause  was  continued 
for  evidence,  and  at  the  January  term,  1897,  was  dismissed  for  want 
of  prosecution,  at  the  cost  of  the  complainant  therein.  On  January 
5,  1899,  Mary  A.  Montgomery  brought  suit  against  appellant.  Hill, 
for  $10,000  damages,  claiming  that  he  had  willfully,  maliciously, 
fraudulently  and  falsely  represented  to  her  that  she  had  been  granted 
a  divorce  from  Montgomery,  and,  acting  under  such  representations 
and  believing  them  to  be  true,  she  entered  into  marriage  with  one 
John  Hampton,  and  continued  to  live  with  Hampton  as  his  wife  until 
December  30,  1898,  when  she  learned  that  she  had  not  been  divorced 
from  Montgomery,  whereby  her  good  name  and  reputation  were 
damaged  and  she  was  brought  into  public  scandal  and  disgrace.  De- 
fendant pleaded  the  general  issue.  The  cause  was  tried  by  a  jury, 
resulting  in  a  verdict  of  guilty  and  fixing  appellee's  damages  at  $5,000. 
On  appeal  the  judgment  was  affirmed  in  the  Appellate  Court. 

The  facts  in  the  case  have  been  settled  adversely  to  appellant  by 
the  judgment  of  the  Appellate  Court,  and  that  judgment,  as  to  con- 
troverted facts,  must  be  regarded  as  final  on  this  appeal.  It  therefore 
only  i:emains  to  be  determined  whether  the  Circuit  Court  erred,  on 
the  trial,  in  its  ruling  on  questions  of  law. 


Examination  of  Witnesses  113 

In  the  argument  of  counsel  for  the  appellant  three  grounds  are 
relied  upon  to  reverse  the  judgment:  First,  the  court  erred  in  re- 
fusing to  admit  certain  evidence  oflFered  by  the  appellant ;  second,  the 
court  made  improper  remarks  in  the  hearing  of  the  jury  during  the 
progress  of  the  trial;  and  third,  the  court  gave  improper  instructions 
on  behalf  of  the  plaintiff. 

Under  the  first  point  relied  upon,  the  cross-examination  of  the 
plaintiff  appellant  undertook  to  prove  by  her  that  she  first  became 
acquainted  with  John  Hampton,  the  person  to  whom  she  was  mar- 
ried, in  a  house  of  prostitution  in  Danville.  The  object  of  this  evi- 
dence was  to  prove  that  the  character  of  the  plaintiff  for  chastity  was 
bad.  It  may  be  conceded  that  in  an  action  of  this  kind,  brought  to 
recover  damages  sustained  by  the  plaintiff  to  her  good  name  and 
character,  it  was  competent,  in  mitigation  of  damages,  to  prove  the 
character  of  the  plaintiff,  and  if  appellant  had  offered  competent  evi- 
dence to  establish  that  fact  it  might  have  been  admitted.  But  appel- 
lant undertook  to  make  proof  of  bad  character  on  cross-examination 
of  the  plaintiff,  and  the  court  held  that  the  evidence  thus  offered 
was  incompetent  on  cross-examination.  The  court  did  not  hold  that 
appellant  could  not  prove  the  fact  at  the  proper  time,  but  merely 
ruled,  and  so  stated  at  the  time,  that  the  evidence  was  not  admissible 
on  cross-examination.  If  the  plaintiff,  on  her  direct  examination, 
had  given  evidence  in  reference  to  her  character,  then,  of  course,  the 
appellant  would  have  been  entitled  to  cross-examine  her  fully  on  this 
subject.  But  such  was  not  the  case.  The  plaintiff,  on  her  direct 
examination,  was  asked  nothing  and  said  nothing  in  regard  to  her 
character,  and  it  was  proper  to  confine  the  cross-examination  to  facts 
called  out  in  chief. 

Under  the  third  head  relied  upon,  it  is  claimed  that  the  court  erred 
in  giving  instructions  4  and  5  for  plaintiff.  Instruction  No.  4  given 
for  the  plaintiff  was  as  follows : 

"The  court  instructs  the  jury  that  one  of  the  modes  recognized 
by  law  for  impeaching  the  veracity  of  a  witness  is  the  introduction 
of  persons  as  witnesses  who  testify  that  they  are  acquainted  with 
the  general  reputation  for  truth  and  veracity  of  the  person  sought  to 
be  impeached,  in  the  neighborhood  where  he  resides;  and  if  the  jury 
believe,  from  the  evidence  in  this  case,  that  the  reputation  for  truth 
and  veracity  of  any  party  or  witness  who  has  testified  before  you,  in 
the  neighborhood  where  he  resides,  is  bad,  then  the  jury  have  a  right 
to  disregard  the  whole  of  such  person's  testimony  and  treat  it  as 


114  Cases  on  Evidence 

untrue,  except  so  far  as  it  is  corroborated  by  other  credible  evidence 
or  by  facts  and  circumstances  proved  on  the  trial." 

The  fifth  instruction  directed  the  jury  that  if  they  believed,  "from 
the  preponderance  of  the  evidence,  that  the  general  reputation  for 
truth  and  veracity  of  any  person  who  testified  upon  the  trial  of  the 
cause  has  been  successfully  impeached,  or  that  any  witness  has  will- 
fully sworn  falsely  as  to  any  matter  or  thing  material  to  the  issues 
of  this  case,  then  the  jury  are  at  liberty  to  disregard  the  entire  tes- 
timony of  any  such  witness,  except  in  so  far  as  the  same  has  been 
corroborated  by  other  credible  evidence,  or  by  facts  and  circumstances 
proved  upon  the  trial  of  this  cause." 

We  think  the  law  is  well  settled  that  where  the  general  reputation 
of  a  witness  for  truth  and  veracity  is  bad  in  the  neighborhood  where 
he  resides,  the  jury  may  disregard  his  evidence,  except  so  far  as  it 
is  corroborated  by  other  evidence  or  by  the  facts  and  circumstances 
proven  on  the  trial,— ^and  this  is  the  substance  of  the  fourth  instruc- 
tion. The  fifth  instruction  announces  the  same  principle,  with  the 
addition  that  if  any  witness  has  willfully  sworn  falsely  as  to  any 
matter  or  thing  material  to  the  issue.  The  instructions  are,  in  our 
opinion,  sustained  by  Freeman  v.  Easly,  117  111.  317,  Hirschman  v. 
People,  loi  id.  568,  and  Miller  v.  People,  39  id.  457.  In  the  last 
case  cited  an  instruction  in  substantially  the  same  language  as  No.  5 
was  considered  and  sustained.  Indeed,  the  sixth  instruction  given  at 
the  request  of  appellant  announces  the  same  rule  contained  in  the  two 
instructions  complained  of  in  the  argument. 

Affirmed. 


THE  PEOPLE  v.  COLE. 
43  N.  Y.  508.    (1871) 


Error  to  the  late  General  Term  of  the  Supreme  Court  in  the  fifth 
district,  to  review  the  reversal  by  that  court  of  a  conviction  of  the 
defendant  in  error  of  grand  larceny  at  the  Jefferson  County  Sessions, 
on  the  15th  of  September,  1869. 

The  prisoner  was  charged,  with  steaHng  from  the  prosecutor, 
Adams,  a  government  boUd  for  $500.  The  bond  was  in  a  bureau 
drawer,  in  the  house  of  Adams,  and  was  taken  while  he  was  out  of 
the  house  milking  the  cow.    It  appeared  that  the  wife  of  Adams  was 


Examination  of  Witnesses  115 

present  when  the  bond  was  taken.  Mrs.  Adatns  swore  on  her  direct 
examination  that  the  prisoner,  while  her  husband  was  out  milking, 
came  into,  the  dining  room  where  the  bond  was,  and  said  she  must 
let  him  have  it.  That  she  told  him  she  could  not,  and  that,  if  he 
wanted  it,  he  must  ask  her  husband,  that  it  was  not  hers.  That  the 
prisoner  then  said  that  the  husband  would  not  let  him  have  it,  if  he 
asked  him;  that  he  must  have  it,  and  that  unless  she  gave  him  the 
bond  he  would  tell  her  husband  of  their  improper  intimacy.  That 
thereupon  she  "got  the  bond  out  of  a  drawer,  in  a  box  in  a  morocco 
case,  and  laid  it  on  the  bureau,  and  the  prisoner  took  it  and  carried 
it  away  with  him. 

The  witness,  at  the  close  of  her  direct  examination,  was  taken 
with  fainting  fits,  and  soon  went  into  convulsions.  It  was  conceded 
that  during  the  whole  of  the  remaining  part  of  the  trial  she  was 
entirely  unfit  to  be  cross-examined. 

The  prisoner's  counsel  called  on  the  district  attorney  to  produce 
her  for  cross-examination,  and  moved  that  her  evidence  be  stricken 
out,  asked  a  postponement  of  the  trial  until  she  should  recover,  and 
asked  that  the  prisoner  be  discharged.  All  these  requests  were  denied 
by  the  court,  and  he  permitted  the  evidence  given  by  Mrs.  Adams  to 
be  submitted  to  the  jury.  The  prisoner  declined  to  give  any  evidence, 
and  moved  for  his  discharge,  on  the  ground  that  there  was  not  suffi- 
cient legal  evidence  to  convict  him.  He  also  requested  a  charge  that 
in  the  absence  of  evidence  of  improper  intercourse  between  him  and 
Mrs.  Adams,  there  was  no  proof  sufficient  to  constitute  larceny.  This 
was  refused  by  the  court. 

The  prisoner  was  convicted  and  sentenced  to  State  prison  for  five 
years. 

GrovEr,  J.  The  evidence  was  ample  to  submit  to  the  jury,  for 
them  to  determine  whether  the  prisoner,  at  the  time  he  took  the 
bond,  did  not  know  that  such  taking  was  against  the  will  of  Mr, 
Adams,  the  owner,  and  with  the  fraudulent  intent  to  deprive  him  of 
his  property,  with  instructions,  that  in  case  they  found  the  affirmative 
of  these  facts,  they  should  find  the  defendant  guilty,  notwithstanding 
the  consent  of  the  wife  to  such  taking.  It  will  be  seen  that  I  should 
have  found  no  difficulty  in  sustaining  the  conviction  in  the  present 
case,  had  not  the  witness,  Mrs.  Adams,  been  sworn  at  all.  The  other 
evidence  was  ample,  if  believed  by  the  jury,  to  authorize  the  con- 
viction, but  this  does  not  relieve  the  case  from  difficulty.  Mrs. 
Adams  was  sworn  and  examined  in  chief,  and  upon  such  examina- 
tion   gave    material    evidence    against    the    prisoner    and    before    the 


ii6  Cases  on  Evidence 

prisoner  had  had  any  opportunity  for  cross-examination  became  so 
severely  ill  as  to  render  her  cross-examination  impossible.  This  evi- 
dence against  the  exception  of  the  prisoner  was  submitted  to  the 
consideration  of  the  jury.  This  evidence  may  have  injured  the  pris- 
oner; and  if  incompetent  against  him,  his  request  that  it  should  be 
struck  out  and  withdrawn  from  the  jury  should  have  been  complied 
with.  The  question  presented  is  of  rare  occurrence,  upon  which  there 
has  been  but  little  judicial  authority.  The  only  case  in  this  State 
involving  the  question  is  that  of  Kissam  v.  Forest  (25  Wendell,  651). 
In  this  case,  upon  trial  before  referees,  at  the  close  of  the  direct 
examination  of  a  witness,  the  referees  proposed  an  adjournment,  to 
which  the  parties  consented.  Before  the  adjournment  day  the  wit- 
ness died.  The  referees  disregarded  the  testimony,  and  the  Supreme 
Court  affirmed  the  judgment.  The  rule  at  common-law  was  discussed, 
and  the  authorities  examined,  and  the  conclusion  arrived  at  that  the 
rule  was  that  no  evidence  should  be  admitted  but  what  was  or  might 
be  under  the  examination  of  both  parties.  That  this  was  the  com- 
mon law  rule  is  shown  from  the  authorities  cited;  and  the  reason 
upon  which  it  was  founded  was  that  ex  parte  statements  were  too 
uncertain  and  unreliable  to  be  considered  in  the  investigation  of  con- 
troverted facts,  and  should  not  therefore  be  received  as  evidence. 
The  rule  of  the  civil  law  is  different.  In  those  countries  where  the 
latter  system  prevails,  the  testimony  of  witnesses  is  often  taken  in 
secret,  and  the  party  to  be  affected  thereby  is  often  kept  in  ignorance 
of  what  it  is  until  too  late  to  controvert  it  by  counter  testimony. 
The  great  superiority  of  the  common-law  rule  is  obvious,  and  that 
should  be  adhered  to,  although  in  some  cases  there  may  be  an  ap- 
parent hardship.  No  injustice  is  done  to  the  party  seeking  to  avail 
himself  of  the  evidence  to  require,  that,  before  its  admission,  its 
truth  shall  be  subjected  to  such  tests  as  the  experience  of  the  ages 
has  shown  were  necessary  to  render  reliance  thereon  at  all  safe,  and 
where  this  has  been  prevented  without  any  fault  of  the  adverse  party, 
to  exclude  the  evidence.  Forest  v.  Kissam  (supra)  was  reversed  by 
the  court  for  the  Correction  of  Errors.  (7  Hill,  463.)  In  the  latter 
court,  the  chancellor  and  two  senators  gave  opinions  to  the  effect 
that  the  testimony  ought  to  be  considered  for  what  it  was  worth, 
although  there  had  been  no  opportunity  for  cross-examination,  the 
witness  and  the  party  introducing  him  being  wholly  free  from  fault. 
Some  senators  gave  opinions  for  reversal,  upon  the  ground  that  the 
party,  by  consenting  to  the  adjournment  at  the  close  of  the  direct, 
had   waived  the  right  of  cross-examination.     Under   these   circum- 


EXAMIXATION    OF    WITNESSES  Il7 

stances,  it  is  impossible  to  determine  upon  what  grotmd  the  reversal 
was  placed  by  the  majority  of  the  court,  and  the  case  is  consequently 
no  authority.  The  chancellor  cites  some  cases,  showing  that  in  chan- 
cery the  direct  examination  has  been  received  where  there  has  been 
no  opportunity  to  cross-examine.  The  rule  in  chancery  is  entitled 
to  but  little  weight  upon  the  inquiry  as  to  what  it  is  at  common-law, 
for  the  reason  that  the  practice  and  rules  in  chancery  were  to  a  great 
extent  derived,  not  from  the  common,  but  from  the  civil  law.  The 
mode  of  examination  of  witnesses  in  chancery  was  entirely  different 
from  that  at  common-law.  My  conclusion  is,  that,  both  upon  prin- 
ciple and  authority,  the  testimony  of  Mrs.  Adams  was  incompetent. 

Reversal  affirmed. 


THE  PEOPLE  V.  DARR. 
262  III.  202.     (19 1 4) 


Mr.  Justice  Vickers  delivered  the  opinion  of  the  court : 
Samuel  F.  Darr  and  Harvey  Austin  Six,  the  plaintiffs  in  error 
together  with  Louis  Wood  Hill  and  John  Doe,  were  indicted  at  the 
September  term  of  the  Circuit  Court  of  Peoria  county,  191 1,  for  a 
conspiracy  to  obtain  money  and  property  from  the  German  Fire  In- 
surance Company  of  Peoria  by  means  of  false  pretenses.  Darr  and 
Six  were  jointly  tried  at  the  January  term,  1912,  of  the  Circuit  Court 
and  found  guilty  and  each  of  them  was  sentenced  to  the  penitentiary 
for  a  term  of  three  years.  A  writ  of  error  was  sued  out  by  them 
from  the  Appellate  Court  for  the  Second  District,  and  that  court  hav- 
ing affirmed  the  conviction  the  record  has  been  brought  to  this  court 
for  review  by  writ  of  error. 

Complaint  is  made  that  plaintiff  in  error,  Six,  was  asked  about 
certain  fires  that  had  occurred  in  Springfield,  one  of  which  was  a 
store  owned  by  the  wife  of  Six.  These  questions  were  asked  Six 
on  his  cross-examination.  The  point  is  made  that  the  effect  of  asking 
these  questions  was  to  insinuate  that  there  had  been  something 
crooked  in  connection  with  these  fires,  and  to  arouse  a  possible  sus- 
picion in  the  minds  of  the  jury  that  Six  was  in  some  way  responsible 
for  such  fires.  It  is  not  pretended  by  the  defendant  in  error  that  any 
of  the  fires  in  Springfield  had  any  connection  whatever  with  the 
burning  of  the  Aldine  Hotel,  in  Peoria.     Some  of  them  apparently 


ii8  Cases  on  Evidence 

occurred  several  years  before  the  burning  of  the  Peoria  property. 
This  cross-examination  was  improper.  It  was  not  germane  to  any- 
thing that  had  been  testified  to  by  Six  in  chief.  Six,  however,  in 
answer  to  these  interrogatories,  disclaimed  any  interest  in  any  of  the 
fires  referred  to,  denied  that  he  had  any  property  destroyed  in  any  of 
them  or  that  he  ever  collected  any  insurance  as  the  result  of  such 
fires,  and  his  answers  were  not  improper,  still,  in  view  of  the  answers 
given  by  the  witness,  we  cannot  believe  that  the  jury  were  misled 
or  otherwise  unfavorably  influenced  against  plaintiffs  in  error  by 
reason  of  this  testimony.  We  think  the  admission  of  this  evidence 
was  harmless. 

There  being  no  reversible  error  in  this  record,  the  judgment  of  the 
Circuit  Court  of  Peoria  county  is  affirmed. 

Judgment  affirmed. 


DeHAVEN  v.  DeHAVEN. 
77  Ind.  236.     (1881) 


Elliott,  C.  J,  Nancy  A.  DeHaven  and  Christopher  DeHaven, 
her  husband,  instituted  this  action  against  the  appellants,  Jacob  De- 
Haven  and  James  T,  DeHaven,  and  five  others. 

The  issue  made  by  the  pleadings  in  this  case  was,  whether  Nancy 
DeHaven  was  an  heir  of  Isaac  DeHaven,  deceased,  and  as  such 
entitled  to  a  distributive  portion  of  his  estate. 

The  appellants  ask  a  reversal  upon  the  ground  that  a  new  trial 
was  erroneously  denied  them.  The  questions  argued  by  counsel  all 
arise  upon  the  rulings  admitting  and  excluding  testimony. 

The  appellants  upon  cross-examination  asked  the  witness,  Tyner. 
the  following  question:  "State  whether  or  not,  during  the  earlier  and 
later  period  of  his  life,  you  heard  him,  Isaac  DeHaven,  make  any 
other  statements  or  expressions  in  regard  to  the  parentage  of  Betsy, 
other  than  you  have  given  upon  your  original  examination?"  The 
declarations  of  Isaac  DeHaven,  the  ancestor,  were  called  out  upon 
appellee's  direct  examination  for  the  purpose  of  proving  the  parentage 
of  her  mother,  and  were  properly  admitted  for  declarations  concern- 
ing pedigree  constitute  a  marked  and  important  exception  to  the  rule 
excluding  hearsay  evidence.  The  declarations  are  admitted  upon  the 
theory  th?t  thev  tend  to  show  that  the  person  to  whom  they  refer 


Examination  of  Witnesse;s  119 

was  recognized  and  treated  as  one  of  a  family.  The  statements  of 
an  ancestor  or  deceased  kinsman  are  not  to  be  regarded  as  separate 
and  distinct  conversations,  constituting  in  themselves  independent 
subjects  of  investigation,  but  they  are  to  be  taken  as  a  connected  and 
indivisible  thing  indicating  the  treatment  of  the  person  whose  pedi- 
gree is  in  dispute.  The  acts  and  declarations  of  the  deceased  kins- 
man are  an  entirety,  and  the  question  is,  not  simply  what  he  said  or 
did  on  one  day,  or  within  one  week,  but  what  was  his  general  line 
of  conduct.  The  subject-matter  which  the  appellee  by  her  direct 
examination  laid  open  for  investigation,  was  the  manner  of  the  de- 
ceased kinsman's  treatment  of  her  mother,  and  not  simply  what  such 
kinsman  said  or  did  on  this  or  that  particular  day.  In  entering  upon 
this  general  subject,  the  appellee  opened  for  examination  a  wide 
field,  that  of  the  general  conduct  of  such  deceased  ancestor,  and  did 
not  merely  expose  a  spot  here  and  there  as  particular  days  or  in- 
stances were  selected  by  her  counsel.  The  qustion  was  proper,  and 
the  court  erred  in  refusing  to  permit  it  to  be  answered. 

It  is  true,  as  appellee's  counsel  assert,  that  the  English  rule  respect- 
ing cross-examinations  has  been  modified  by  the  courts  of  this  coun- 
try, and  that  a  cross-examination  must,  under  the  American  rule, 
be  confined  to  the  subject-matter  of  the  examination  in  chief.  Sub- 
ject-matter is  not,  however,  to  be  given  such  a  narrow  and  restricted 
meaning  as  that  ascribed  to  it  by  counsel.  Facts  and  circumstances 
connected  with  the  subject  may  be  asked  for  and  called  out  upon 
cross-examination,  and  the  cross-examining  party  cannot  be  restricted 
to  mere  parts  of  a  general  and  continuous  subject  which  constitute 
a  unity. 

Judgment  reversed. 


PEOPLE  V.  ROBINSON. 
IS5  Mich.  511;  98  N.  W.  803.     (1905) 

Hooker,  J.  The  defendant  was  convicted  of  violating  the  law 
prohibiting  the  sale  of  spirituous  and  intoxicating  liquor,  known  as 
the  "Local  Option  Law,"  which  is  in  force  in  this  country,  and  the 
case  is  before  us  on  exceptions  before  sentence. 

A  witness  called  by  the  people  testified  on  cross-examination  that 
he  had  bought  liquor  of  respondent  for  medicinal  purposes,  had  seen 


I20  Cases  on  Evidence 

his  name  registered,  and  had  never  seen  anything  out  of  character 
at  respondents  store.  On  redirect  he  was  asked  "what  difficulty  he 
bought  medicine  for,"  and  stated  that  he  could  not  tell,  and  that  it 
was  well  known  that  he  took  daily  drinks.  On  his  direct  he  was 
asked  questions  relating  to  the  administering  the  oath  to  respondent 
when  he  verified  the  reports.  The  redirect  examination  complained 
of  was  in  response  to  new  matter  drawn  out  on  the  cross-examination, 
and  was  competent. 

Conviction  affirmed. 


STRUTH  v.  DECKER. 
100  Md.  368,  5g  Atl.  y2y.    (1905) 

PearcE,  J.,  delivered  the  opinion  of  the  court: 

This  is  an  appeal  from  rulings  of  the  Court  of  Common  Pleas 
of  Baltimore  City  in  the  trial  of  a  caveat  to  the  will  of  Charles  Struth, 
deceased.  Six  issues  were  sent  by  the  Orphans'  Court  to  be  tried  by 
a  jury.  The  first  related  to  the  signing  and  attestation  of  the  paper  of- 
fered for  probate ;  the  second,  to  the  question  of  testamentary  capacity ; 
the  third,  to  knowledge  of  the  contents  of  the  paper;  the  fourth,  in- 
quired whether  any  part  of  said  paper  was  contrary  to  the  testator's 
instructions;  the  fifth,  whether  any  part  of  said  paper  was  misun- 
derstood by  him  at  the  time  of  execution;  and  the  sixth,  whether  its 
execution  was  procured  by  undue  influence  exercised  over  him.  The 
jury  answered  "yes"  to  the  ist,  2nd  and  3rd  issue,  and  "no"  to  the 
4th,  5th  and  6th,  the  verdict  being  for  the  caveatees  on  all  the  issues. 

Upon  cross-examination.  Dr.  Street,  after  stating  that  he  had  heard 
the  will  read,  was  asked  this  question : 

"Now  Doctor,  if  it  should  turn  out  in  the  proof  that  every  piece 
of  property  he  owned  was  mentioned  in  this  will,  and  that  all  his 
beneficiaries  are  mentioned  in  this  will,  and  that  he  has  charged 
certain  ones  with  advancements,  and  that  he  has  made  certain  pro- 
visions in  regard  to  certain  stock  mentioned  therein,  and  that  all  this 
originated  with  him,  himself,  and  without  any  knowledge  on  the  part 
of  counsel,  do  you  mean  to  say  that  such  a  man  as  that  was  incapable 
of  making  a  valid  deed  or  contract?"  This  was  objected  to,  and  the 
second  exception  was  taken  to  its  allowance.  This  question  may  not 
be  framed  with  strict  regard  to  the  usual  form  of  hypothetical  ques- 


Examination  of  Witnesses  121 

tions,  but  it  is  clearly  proper  cross-examination,  and  the  refusal  of 
the  question  would  have  been  hypercritical. 

The  fifth  exception  was  taken  to  the  allowance  of  the  following 
question  to  Mr.  Decker,  the  attorney  who  drew  the  will :  "What  was 
his  mental  condition  the  day  you  drew  the  will  as  compared  with 
his  mind  as  you  knew  him  before?"  It  is  contended  that  this  asks 
for  mere  opinion,  from  one  w,ho  is  neither  an  expert,  nor  a  subscrib- 
ing witness,  and  was  therefore  improper.  But  Mr.  Decker  had  known 
Mr.  Struth  for  fifteen  years,  had  been  accustomed  to  meet  him  so- 
cially at  the  Germania  Maennorchor  where  he  frequently  played  cards 
with  him,  and  had  transacted  one  piece  of  business  with  him  three 
or  four  years  before,  and  we  think  he  had  the  opportunity  to  form 
a  rational  opinion  and  that  the  facts  deposed  to  by  him  in  his  tes- 
timony did  furnish  a  rational  ground  for  making  the  comparison 
sought  in  the  question.     The  Berry  will  Case,  93  Md.  580. 

Dr.  Street  was  called  in  rebuttal  by  the  caveators,  and  after  reciting 
to  him  portions  of  Mr.  Decker's  testimony  as  to  the  dictation  of  the 
will  to  him  by  Mr.  Struth ;  and  his  own  previous  ignorance  of  the 
testator's  property,  and  its  intended  disposition,  he  was  asked  "with 
this  additional  knowledge  what  he  had  to  say  as  to  Mr.  Struth's 
capacity  to  make  the  will  in  question,"  and  the  tenth  exception  was 
taken  to  the  refusal  of  this  question. 

We  cannot  perceive  that  this  tended  to  rebut  anything  brought  out 
in  Mr.  Decker's  testimony,  and  if  intended  to  reply  to  the  hypothetical 
question  and  answer  to  Dr.  Street  which  was  the  subject  of  the  second 
exception,  the  witness  should  have  been  re-examined  upon  the  conclus- 
ion of  the  cross-examination,  and  not  called  in  rebuttal. 

It  follows  that  the  ruling  appealed  from  must  be  affirmed. 

Rulings  affirmed  and  cause  remanded. 


GRABOWSKI  V.  STATE. 

126  Wis.  447;  105  N.  W.  805.     (1905) 

Cassoday,  C.  J.  The  plaintiff  in  error  was  convicted  of  having, 
on  December  14,  1904,  taken  improper  and  indecent  liberties  with  the 
person  of  one  Franceska  Heine,  a  female  person  of  the  age  of  about 
ten  years,  of  Polish  parentage,  contrary  to  the  statute,  and  was  sen- 


122  Cases  on  Evidence 

tenced  to  imprisonment  in  the  house  of  correction  for  the  term  of 
two  years. 

Error  is  assigned  because  the  court  admitted  testimony  of  the 
little  girl  as  to  the  accused  taking  indecent  liberties  with  her  person 
a  short  time  prior  to  the  time  in  question.  Such  evidence  was  clearly 
admissible,  as  tending  to  prove  the  motive  and  intent  of  the  accused 
in  doing  the  acts  complained  of.  Benedict  v.  State,  14  Wis.  423; 
Proper  v.  State,  85  Wis.  615,  628-631,  51  N.  W.  1035;  Lanphere  v. 
State,  114  Wis.  193,  200,  201,  89  N.  W.  128;  Bannen  v.  State,  115 
Wis.  317,  330,  331,  91  N.  W.  107,  965;  4  Elliott,  Evidence,  sec.  2720, 
and  cases  cited  there.  So  there  was  no  error  in  allowing  the  little  girl, 
on  redirect  examination,  to  testify  to  the  effect  that  the  reason  why 
she  told  the  accused  that  what  she  had  said  about  his  committing  the 
offense  was  all  a  lie  was  because  she  was  afraid  he  would  kill  her. 
On  rebuttal  a  witness  for  the  state  was  asked  what  conduct  or  lan- 
guage he  saw  and  heard  between  the  accused  and  his  wife  when  he 
went  to  the  saloon  at  the  time  in  question.  In  overruling  the  objec- 
tion to  the  question  the  court  said :  "It  is  only  relevant  by  reason 
of  the  testimony  given  by  the  defendant  on  this  subject."  Having 
opened  the  door  for  the  admission  of  such  testimony  the  accused  is 
in  no  position  to  take  exception  thereto.  Schissler  v.  State,  122  Wis. 
365,  372,  373,  99  N.  W.  593.  Counsel  contends  that  it  was  only  on 
cross-examination  of  the  accused  that  such  testimony  was  adduced. 
But  in  the  direct  examination  of  the  accused  he  testified  as  to  what 
took  place  between  him  and  his  wife  back  of  the  bar  in  the  saloon 
after  his  wife  and  the  little  girl  cartie  downstairs.  The  state,  on 
rebuttal,  sought  to  prove  by  a  physician  that  he  had  examined  the 
wife  of  the  accused,  and  what  he  had  examined  her  for.  On  ob- 
jection being  made,  the  district  attorney  insisted  that  the  testimony 
was  proper  as  impeaching  the  accused  in  swearing  "that  he  had  not 
abused  his  wife,"  and  thereupon  the  objection  was  sustained.  Such 
ruling  was  in  favor  of  the  accused.  We  perceive  no  ground  of 
criticism  in  such  remarks  of  the  district  attorney. 

By  the  Court.  The  judgment  of  the  Municipal  Court  of  Milwaukee 
county  is  affirmed. 


Examination  of  Witnesses  123 

RIGGS  V.  STERLING. 
60  Mich.  644.     (1886) 

Ejectment.     Plaintiff  brings  error.     Affirmed. 

Sherwood,  J.  The  action  in  this  case  is  ejectment,  to  recover  the 
possession  of  less  than  forty  acres  of  land  situate  in  the  county  of 
Wayne  and  not  included  in  any  town  plat,  city,  or  village.  It  was 
purchased  by  William  Sterling,  the  husband  of  the  defendant,  in  1874, 
and  was  used  and  occupied  by  them  as  their  homestead  until  the  sixth 
day  of  March,  1883,  when  the  husband  died,  and  the  defendant  has 
made  the  same  her  home,  continuing  the  occupancy  thereof  by  her- 
self and  tenants  up  to  the  time  of  commencing  this  suit. 

The  value  of  this  homestead  was  really  the  only  question  to  be 
determined  in  this  case.  Six  witnesses  on  each  side  were  allowed  to 
testify  upon  the  subject  and  no  more.  The  refusal  to  allow  more  to 
testify  on  the  part  of  the  plaintiff  is  assigned  as  error;  but  we  think 
there  was  no  abuse  of  discretion  on  the  part  of  the  court  in  not 
allowing  more  cumulative  evidence  upon  this  point.  Under  the  cir- 
cumstances of  this  case,  I  can  see  no  reason  why  a  larger  number 
than  composed  the  panel  of  jurors  to  try  the  cause  should  have  been 
necessary. 


KRAIMER  V.  f  TATE. 
117  Wis.  350.     (1903) 

Winslow,  J.  Douglas  Kraimer  was  convicted  in  the  Circuit  Court 
for  Price  county  of  an  assault  upon  one  Peter  Isaacson,  being  armed 
with  a  dangerous  weapon  and  with  intent  to  kill  and  murder  said 
Isaacson,  and  he  brings  his  writ  of  error  to  reverse  the  judgment. 

The  plaintiff  in  error  was  asked  upon  cross-examination  whether 
he  had  ever  been  convicted  of  a  crime,  and  replied  that  he  was  con- 
victed of  stealing  a  horse  in  Indiana,  and  sent  to  prison  for  eighteen 
months.  Afterwards,  in  the  trial,  the  plaintiff  in  error  called  as  a 
witness  one  Peter  Smith,  who  lived  in  the  vicinity  and  knew  the 
accused  well,  and  asked  him  whether  he  knew  Kraimer's  reputation 
for  truth  and  veracity  in  the  community  where  he  lived,  and  upon 
objection  the  testimony  was  ruled  out  on  the  ground  that  the  repu- 


124  Cases  on  Evidence 

tation  of  the  accused  had  not  been  attacked.  It  is  very  plain  that 
this  ruling  was  erroneous,  and  equally  plain  that  the  error  was  preju- 
dicial. Our  statute  allows  the  fact  of  the  former  conviction  of  a  wit- 
ness for  a  criminal  offense  to  be  proven  by  cross-examination  of  the 
witness  himself;  but  such  fact  is  only  allowed  to  be  proven  to  affect 
the  credibility  of  the  witness,  or,  in  other  words  to  impeach  him.  Sec. 
4073,  Stats.  1898.  It  is  simply  a  method  of  impeaching  the  character 
of  the  witness  for  truth  and  veracity.  The  rule  is  well  settled  that 
when  a  witness  is  impeached,  whether  by  the  evidence  of  witnesses 
who  testify  to  his  reputation  for  truth  and  veracity,  or  by  proof  of 
a  former  conviction  of  crime,  it  is  competent  to  introduce  witnesses 
to  testify  to  his  good  character  in  that  respect.  3  Jones,  Evidence, 
Sec.  870;  Gertz  v.  Fitchburg,  R.  Co.,  137  Mass.  "]"]. 

By  the  Court.    Judgment  reversed,  and  action  remanded  for  a  new 
trial. 


WARFIELD  v.  RAILROAD. 
104  Tenn.  74.     (ipoo) 

Wilkes,  J.  These  actions  were  for  unlawfully  ejecting  the  plain- 
tiff from  the  cars  of  the  defendant  road. 

They  were  tried  together  in  the  court  below  and  in  this  court,  and 
there  was  verdict  and  judgmei^t  in  each  case  in  the  trial  court  for  the 
railroad,  and  the  plaintiffs  have  appealed  and  assigned  errors. 

It  is  said  it  was  error  to  allow  evidence  to  sustain  the  general 
character  of  the  witness,  Corbett,  the  conductor  on  the  train.  This 
witness  was  assailed  in  a  severe  and  searching  cross-examination  by 
questions  which,  in  their  substance  and  manner  of  asking,  were  cal- 
cVilated  to  impeach  his  veracity  and  question  his  truthfulness.  Under 
such  circumstances  it  was  proper  to  allow  evidence  to  sustain  his 
character.     Richmond  v.  Richmond,   10  Yer.  343-5. 

Upon  the  whole  record  we  have  not  been  able  to  find  any  reversible 
error,  and  the  judgment  of  the  court  below  is  affirmed  with  costs. 


Examination  of  Witnesses  125 

SHIELDS  V.  CONWAY.  ^ 

133  Ky.  35.     (1909) 

Opinion  of  the  court  by  Judge  Carroi,.    Affirming. 

Appellee,  who  was  plaintiff  below,  brought  this  action  in  slander 
against  the  appellant,  Shields,  who  was  defendant  below,  charging 
that  in  the  presence  and  hearing  of  divers  and  sundry  persons  Shields 
falsely  and  maliciously  spoke  of  and  concerning  him  the  following 
words,  to-wit:  "Oh,  yes;  you  are  paving  the  way  to  have  another 
lawsuit  with  me,  so  you  can  go  down  to  Bardstown  and  swear  to 
some  more  damned  lies  like  you  did  on  the  other  trial." — thereby 
meaning  to  charge  Conway  with  the  crime  of  perjury  committed  in 
his  testimony  in  a  case  pending  between  the  parties  a  short  time  pre- 
viously. The  answer  did  not  deny  the  fact  that  Conway  had  previ- 
ously testified  in  the  suit,  but  did  deny  speaking  the  words  charged. 
Upon  trial  before  a  jury  the  plaintiff  recovered  a  judgment  for  $400. 

On  the  trial  of  the  case,  after  a  witness  named  Barnett  testified 
in  behalf  of  plaintiff,  the  defendant  introduced  a  record  of  the  Nel- 
son Circuit  Court,  consisting  of  an  indictment  against  Barnett  and 
a  judgment,  showing  that  in  1887  on  the  charge  of  murder  he  was 
convicted  and  his  punishment  fixed  at  eighteen  years  in  the  State 
penitentiary.  Thereupon  the  plaintiff  introduced  in  rebuttal  a  num- 
ber of  witnesses,  who  testified  to  the  general  good  reputation  of 
Barnett  for  truth  and  morality.  The  admission  of  this  evidence  is 
the  principal  error  complained  of.  It  is  the  contention  of  appel- 
lant that  this  evidence  was  incompetent  because  the  general  reputa- 
tion of  Barnett  was  not  attacked  or  impeached  by  the  introduction 
of  the  record  of  his  conviction.  Section  597  of  the  Civil  Code  of 
Practice  declares  that:  "A  witness  may  be  impeached  by  the  party 
against  whom  he  is  produced,  by  contradictory  evidence,  by  show- 
ing that  he  has  made  statements  different  from  his  present  testimony, 
or  by  evidence  that  his  general  reputation  for  untruthfulness  or  immor- 
ality renders  him  unworthy  of  beUef ;  but  not  by  evidence  of  particu- 
lar wrongful  acts,  except  that  it  may  be  shown  by  the  examination 
of  a  witness,  or  record  of  a  judgment,  that  he  has  been  convicted 
of  felony."  And  section  599  provides:  "Evidence  of  the  good 
character  of  a  witness  is  inadmissible  until  his  general  reputation  has 
been  impeached.'  Under  section  597  it  was  competent  for  the  de- 
fendant to  introduce  the  record  of  Barnett's  conviction,  but  the  ad- 
missibility of  the  evidence  of  his  good  character  depends  upon  the 


126  Cases  on  Evidence 

question  whether  or  not  the  introduction  of  this  record  was  such  an 
impeachment  of  his  general  reputation,  within  the  meaning  of  sec- 
tion 599,  as  authorized  the  introduction  of  evidence  of  his  good  char- 
acter. This  precise  question  has  not  heretofore  been  decided  by  this 
court,  but  it  has  come  before  other  courts  of  last  resort — some  of 
them  holding  that  evidence  of  this  character  is  competent,  and  others 
holding  it  incompetent. 

In  our  opinion  the  evidence  was  competent.  The  purpose  in  in- 
troducing the  record  of  conviction  was  to  impeach  the  general  repu- 
tation of  the  witness,  and  to  impress  the  jury  with  the  fact  that  he 
was  not  worthy  of  belief.  However  serious  an  offense  a  man  may 
have  committed,  and  however  damaging  to  his  reputation  it  may  be, 
he  should  be  allowed  the  privilege  of  outliving  the  odium  attached  to 
it,  and  reinstating  himself  in  the  confidence  and  respect  of  his  neigh- 
bors and  acquaintances.  No  matter  how  bad  a  man  may  have  been,  - 
or  how  low  in  the  estimation  of  his  neighbors  he  may  have  fallen, 
he  should  not  be  denied  the  right  to  reform  or  the  high  privilege- 
of  becoming  an  honored  and  useful  citizen ;  and  when  he  does  so  re- 
establish himself,  and  the  record  of  his  former  delinquency  is  offered 
to  discredit  him,  he  should  have  the  right  to  show  that  his  reformation 
is  genuine,  and  that  his  neighbors  and  acquaintances  regard  his 
general  reputation  for  truthfulness  and  morality  as  good.  It  would 
be  a  hard  and  almost  cruel  rule  to  lay  down  that  a  man  on  the 
witness  stand  might  be  confronted  with  the  record  of  a  crime,  com- 
mitted many  years  before,  offered  for  the  purpose  of  embarrassing, 
humiliating  and  discrediting  him,  and  yet  denied  the  right  to  show 
by  persons  competent  and  qualified  to  speak  that  afterwards  by  good 
conduct  and  an  upright  life  he  had  established  himself  in  the  respect 
of  his  neighbors.  We  think  this  conclusion  fully  authorized  by  a 
fair  construction  of  the  Code  provisions  referred  to.  A  witness 
may  not  be  impeached  by  evidence  of  particular  wrongful  acts,  with 
the  exception  that  it  may  be  shown  that  he  has  been  convicted  of  a 
felony.  Although  he  may  have  committed  a  dozen  particular  wrong- 
ful acts,  each  involving  greater  moral  turpitude  than  many  felonies,  yet 
evidence  of  them  is  not  competent ;  but  if  he  has  committed  one  amount- 
ing to  a  felony,  followed  by  a  conviction,  this  one  offense  may  be 
offered  in  evidence  against  him.  It  is  therefore  manifest  that  the 
Legislature  intended  to  place  the  one  act  followed  by  a  conviction 
for  a  felony  in  a  class  different  from  other  wrongful  acts  not  so 
punished,  and  in  the  same  category  as  an  attack  upon  the  general 
reputation  of  the  witness.     A  witness  cannot  be  impeached  by  evi- 


Examination  of  Witnesses  127 

dence  of  particular  wrongful  acts,  because  he  may  not  be  prepared 
to  meet  them ;  and,  if  he  was,  to  allow  an  explanation  for  each,  would 
often  unreasonably  protract  the  trial,  besides  bringing  into  it  many 
side  issues.  And,  as  the  witness  cannot  be  impeached  by  evidence 
of  particular  wrongful  acts,  neither  can  evidence  be  offered  to  sus- 
tain his  character,  as  such  evidence  is  not  admissible  until  his  good 
character  has  been  put  in  issue — ^until  an  attack  has  been  made  upon 
it  in  a  general  way.  But  a  witness  may  be  impeached  by  a  record  of 
conviction  for  a  felony,  and,  as  he  cannot  excuse  or  justify  its  com- 
mission or  go  behind  the  judgment,  it  would  follow  that  if  there 
was  no  other  way  by  which  he  could  show  the  jury  or  the  court 
that  he  was  truthful  and  moral,  he  must  stand  mute  before  the 
silent  but  impressive  evidence  of  his  guilt,  and  see  his  reputation 
attacked  without  an  opportunity  to  defend.  Although  a  witness 
when  thus  impeached  may  not  go  behind  or  explain  the  conviction, 
yet  he  may  show  that  since  the  judgment  was  pronounced  he  has 
lived  an  honorable  and  upright  life  and  is  held  in  high  esteem  by 
friends  and  neighbors ;  and  this,  upon  the  ground  that  the  evidence 
of  conviction  is  in  fact  and  truth  an  attack  upon  his  general  reputa- 
tion within  the  fair  meaning  of  the  Code. 

But  counsel  say  that,  if  it  is  allowable  to  offer  evidence  of  good 
character  to  rebut  the  presumption  of  unworthiness  arising  from  a 
conviction  for  a  felony,  it  would  logically  result  in  allowing  a  wit- 
ness who  had  made  contradictory  statements  or  declarations  in  con- 
flict with  his  present  testimony,  or  who  was  shown  to  have  an  in- 
terest in  the  case,  to  introduce  evidence  in  support  of  his  good 
character.  There  is  no  reason,  however,  for  carrying  the  rule  we 
have  announced  to  this  extent.  A  witness  may  be  related  to  the 
party  in  whose  behalf  he  is  testifying,  or  he  may  be  interested  in  the 
result  of  the  controversy,  or  he  may  have  made  contradictory  state- 
ments, or  declarations  in  conflict  with  his  present  testimony,  but 
evidence  of  these  facts,  or  any  or  all  of  them  would  not  be  an  im- 
peachment of  the  general  reputation  of  the  witness  for  morality  and 
truth.  A  witness  of  the  highest  character  may  be  related  to  a  party 
to  the  litigation,  or  interested  in  the  result  of  the  trial,  or  have  made 
statements  contradictory  of  his  evidence,  but  these  circumstances  do 
not  involve  his  general  reputation  for  truthfulness,  nor  are  they  re- 
garded as  impeaching  his  character.  We  have  carefully  examined 
the  instruction  criticized,  but  we  do  not  find  it  open  to  the  objection 
urged  against  it. 

Perceiving  no  error,  the  judgment  is  affirmed. 


128  Cases  on  Evidence 

YORK  V.  PEASE. 
68  Mass.  282.     (1854) 

Action  of  tort,  brought  by  an  infant,  by  Dr.  Simeon  D.  York,  his 
father  and  next  friend,  for  slander,  in  charging  the  plaintiff  with 
larceny  by  the  following  words :  "The  trouble  was  instigated  by 
Dr.  York.  I  discharged  his  boy  for  being  dishonest,  for  stealing. 
He  stole  money  from  me,  and  I  turned  him  away."  Answer,  that 
the  words  "were  true,  and  spoken  for  justifiable  ends." 

BiGELOW,  J.  I.  The  plaintiff,  in  proving  his  prima  facie  case, 
offered  evidence  to  show  that  the  words  alleged  to  be  slanderous 
were  not  spoken  under  circumstances  which  would  bring  them  within 
the  rule  touching  privileged  communications.  He  was  not  bound  to 
do  this ;  but  in  the  exercise  of  his  own  discretion,  he  saw  fit  thus  far  to 
anticipate  the  defense.  Having  thus  opened  this  part  of  the  case, 
and  introduced  as  much  evidence  respecting  it  as  he  deemed  expedient, 
he  could  not  afterwards  claim,  as  a  matter  of  right,  to  accumulate 
testimony  upon  the  same  point.  It  was  then  a  mere  matter  of  dis- 
cretion, with  the  judge  who  presided  at  the  trial,  to  admit  or  reject 
the  evidence,  to  the  exercise  of  which  no  exception  can  be  taken. 
I  Greenl.  Ev.  sec.  74,  and  431.  Browne  v.  Murray,  Ry.  &  Mood. 
254.  As  a  general  rule  in  the  conduct  of  trials,  if  a  party  elects 
to  proceed  in  the  first  instance  with  proof  to  anticipate  the  defense, 
he  should  not  afterwards  be  allowed  to  offer  evidence  on  the  same 
point,  in  reply  to  the  case  made  by  the  testimony  of  the  defendant. 
To  permit  a  party  thus  to  divide  his  case  leads  to  confusion,  and  gives 
him  an  unfair  advantage  over  his  adversary. 

2.  When,  and  under  what  circumstances,  a  party  may  be  allowed 
to  put  leading  questions  to  his  own  witness,  is  also  a  matter  of  dis- 
cretion, resting  solely  with  the  judge  before  whom  the  trial  is  had, 
and  is  not  subject  to  revision  or  exception.  Moody  v,  Rowell,  17 
Pick.  498.  I  Greenl.  Ev.  sec.  435.  The  questions  put  to  the  prochein 
ami  by  the  defendant  come  clearly  within  this  rule. 

Exceptions  overruled. 


Examination  of  Witnesses  129 

THE  STATE  v.  PFEFFERLE. 
26  Kan.  po.     (1886) 

Prosecution  for  a  violation  of  the  prohibitory  liquor  law.  The 
defendant,  Pfefferle,  and  another,  jointly  charged  in  an  information 
containing  five  counts,  were  jointly  tried  at  the  June  Term,  1886, 
and  were  found  guilty  on  all  the  counts.  Pfefferle  was  sentenced  on 
each  count  to  pay  a  fine  of  $100,  to  be  imprisoned  for  thirty  days 
in  the  county  jail,  and  to  pay  the  costs  of  the  prosecution,  taxed  at 
$213.25. 

The  opinion  of  the  court  was  delivered  by 

Johnston,  J. :  The  information  in  this  case  contained  five  counts, 
in  each  of  which  it  was  charged  that  O.  Pfefferle  and  August  Gutee 
kunst  sold  intoxicating  liquors  at  stated  times  during  the  year  1886, 
without  having  a  permit  to  do  so.  They  were  jointly  tried,  and 
were  both  found  guilty  on  each  count,  but  Pfefferle  only  has  appealed. 

Gutekunst  voluntarily  became  a  witness  in  behalf  of  Pfefferle  and 
himself,  and  upon  cross-examination  he  was  asked  if  he  was  not  an 
old  saloon  keeper,  and  if  he  had  not  been  tried  and  convicted  in  that 
court  several  times  for  the  sale  of  liquor.  Other  questions  of  like 
importance  were  asked,  and  the  witness  over  the  objection  of  the 
defendant,  admitted  that  he  had  been  engaged  in  the  sale  of  liquor, 
and  had  recently  been  tried  and  convicted  for  its  unlawful  sale.  The 
admission  of  this  evidence  is  the  principal  error  complained  of.  By 
taking  the  witness  stand,  Gutekunst  changed  his  status,  for  the  time 
being,  from  defendant  to  witness,*and  was  entitled  to  the  same  privi- 
leges and  subject  to  the  same  treatment,  and  to  be  contradicted,  dis- 
credited and  impeached  the  same  as  any  other  witness.  But  if  a 
different  rule  applies  to  the  defendant  who  becomes  a  witness,  as 
some  authorities  seem  to  hold,  it  would  not  avail  the  appellant,  as 
the  defendant  Gutekunst  has  not  appealed  and  is  not  complaining, 
and  therefore  stands  in  the  same  relation  to  the  appellant  as  any  other 
witness.  Although  there  is  some  diversity  of  judicial  opinion  con- 
cerning how  far  a  witness  may  be  cross-examined  upon  matters  not 
relevant  to  the  issue,  with  a  view  of  discrediting  him,  yet  we  think 
the  limits  of  cross-examination  for  such  purpose  rest  largely  in  the 
discretion  of  the  court;  and  there  is  abundant  authority  for  allowing 
the  questions  asked  in  this  case.  Mr.  Wharton,  in  discussing  this 
question,  says  that — 

"In  this  country  there  has  been  some  hesitation  in  permitting  a 


130  ,  Cases  on  Evidence 

question,  the  answer  to  which  not  merely  imputes  disgrace,  but  touches 
on  matters  of  record ;  but  the  tendency  now  is,  if  the  question  be  given 
for  the  purpose  of  honestly  discrediting  a  witness,  to  require  an 
answer."     (Wharton's  Crim.  Ev.  sec.  474.) 

Stephens,  in  art.  129  of  his  Digest  of  the  Law  of  Evidence,  in 
speaking  of  what  are  lawful  questions  on  cross-examination,  says: 

"When  a  witness  is  cross-examined,  he  may  be  asked  any  questions 
which  tend — first,  to  test  his  accuracy,  veracity,  or  credibility ;  or 
second,  to  shake  his  credit  by  injuring  his  character.  He  may  be 
compelled  to  answer  any  such  question,  however  irrelevant  it  may 
be  to  the  facts  in  issue,  and  however  disgraceful  the  answer  may  be 
to  himself,  except  in  the  case  provided  in  article  120,  viz.,  when  the 
answer  might  expose  him  to  a  criminal  charge,  or  penalty." 

In  Wroe  v.  The  State,  20  Ohio  St.  460,  the  witness  for  the  de- 
fendant was  asked  on  cross-examination,  "Were  you  not  discharged 
or  compelled  to  resign  from  the  police  force  of  the  city  of  Dayton?" 
and  also,  "Are  you  not  now  under  indictment  for  murder  in  the 
second  degree  in  this  court?"  And  another  witness  for  the  de- 
fendant was  asked  if  he  had  not  been  indicted  for  assault  and  bat- 
tery in  that  court,  and  pleaded  guilty.  The  Supreme  Court  held  that 
the  questions  were  allowable  under  the  latitude  of  cross-examination ; 
and  stated  in  its  opinion  that — 

"It  is  difficult  to  lay  down  any  precise  rule  fixing  the  limits  to 
which  a  witness  may  be  cross-examined  on  matters  not  relevant  to 
the  issue.  This  must  in  a  great  measure  rest  in  the  sound  discre- 
tion of  the  court  trying  the  cause.  Such  questions  may  well  be  al- 
lowed when  there  is  reason  to  believe  it  will  tend  to  the  ends  of 
justice;  but  they  ought  to  be  excluded  when  the  disparaging  course 
of  the  examination  seems  unjust  to  the  witness,  and  uncalled  for  by 
the  circumstances  of  the  case." 

In  a  later  case  in  that  state,  where  the  defendant  was  on  trial  for 
murder  in  the  first  degree,  and  having  offered  himself  as  a  witness 
was  asked  on  cross-examination  if  he  had  not  previously  been  in- 
dicted for  assault  with  intent  to  kill,  and  pleaded  guilty  to  the  same, 
and  if  he  had  not  frequently  been  arrested  in  that  county  on  charges 
of  assault  and  battery,  objections  to  these  questions  were  overruled, 
and  the  Supreme  Court  held  that  it  was  within  the  discretion  of  the 
court  to  allow  the  questions  for  the  purpose  of  judging  of  the  char- 
acter and  credit  of  the  witness  from  his  own  admissions,  and  that 
it  did  not  appear  that  the  discretion  had  been  abused.  (Tanoff  v. 
The  State,  37  Ohio  St.  178.) 


Examination  of  Witnesses  131 

In  Brandon  v.  The  People,  42  N.  Y.  265,  the  defendant  became  a 
witness  in  his  own  behalf,  and  on  cross-examination  he  was  asked: 
"Have  you  ever  been  arrested  before  for  theft?"  The  counsel  for 
the  defendant  objected  to  the  question  on  the  ground  that  the  prose- 
cuting attorney  had  no  right  to  attack  the  character  of  the  prisoner, 
she  not  having  put  her  character  in  issue.  The  objection  was  over- 
ruled, and  the  court  of  appeals  held  the  question  proper  for  the 
purpose  of  impairing  the  credibility  of  the  witness,  saying  that — 

"It  has  been  the  practice  of  the  courts  of  this  state  from  a  very 
early  period  to  permit  questions  of  this  character  to  be  put  to  a  wit- 
ness, and  for  the  purpose  indicated.  Its  abuse  is  guarded  against 
in  two  modes :  first,  by  the  privilege  of  the  witness  to  decline  to 
answer  any  questions  which  may  disgrace  him  or  may  tend  to  charge 
him  as  a  criminal;  second,  by  the  power  of  the  court  of  its  own 
motion  to  prohibit  an  unreasonable  or  oppressive  cross-examination." 

The  Supreme  Court  of  Michigan  considered  the  propriety  of  such 
testimony  in  a  case  where  the  defendant  was  sworn  as  a  witness  in 
his  own  behalf  and  controverted  the  plaintifif's  case.  On  cross-ex- 
amination he  was  allowed,  against  objection  to  be  asked  whether  he 
was  ever  confined  in  a  state  prison.  The  court  held  the  objection 
was  not  tenable  saying  that — 

"It  has  always  been  held  that  within  reasonable  limits  a  witnesss 
may,  on  cross-examination,  be  very  thoroughly  sifted  upon  his  char- 
acter and  antecedents.  The  court  has  a  discretion  as  to  how  far  pro- 
priety will  allow  this  to  be  done  in  a  given  case,  and  will  or  should 
prevent  any  needless  or  wanton  abuse  of  the  power.  But  within  this 
discretion  we  think  a  witness  may  be  asked  concerning  all  antece- 
dents which  are  really  significant,  and  which  will  explain  his  credibil- 
ity, and  it  is  certain  that  proof  of  punishment  in  a  state  prison  may  be 
an  important  fact  for  this  purpose.  And  it  is  not  very  easy  to  con- 
ceive why  this  knowledge  may  not  be  as  properly  derived  from  the 
witness  as  from  other  sources.  He  must  be  better  acquainted  than 
others  with  his  own  history,  and  is  under  no  temptation  to  make  his 
own  case  worse  than  truth  will  warrant.  There  can  with  him  be 
no  mistakes  of  identity.  If  there  are  extenuating  circumstances,  no 
one  else  can  so  readily  recall  them.  We  think  the  case  comes  within 
the  well-established  rules  of  cross-examination,  and  that  the  few  au- 
thorities which  seem  to  doubt  it  have  been  misunderstood,  or  else 
have  been  based  upon  a  fallacious  course  of  reasoning,  which  would, 
in  nine  cases  out  of  ten,  prevent  an  honest  witness  from  obtaining 


132  Cases  on  Evidence 

better  credit  than  an  abandoned  ruffian."  (Wilbur  v.  Flood,  16  Mich. 
40.) 

In  Clemens  v.  Conrad,  19  Mich.  170,  a  witness  was  required  to 
answer  whether  he  had  not  been  indicted  and  convicted  of  a  criminal 
offense.  The  objection  was  there  made,  as  it  is  in  this  case,  that  the 
testimony  involved  matters  of  record,  and  was  for  that  reason  ob- 
jectionable; but  Judge  Cooley,  speaking  for  the  court  said: 

"We  think  the  reasons  for  requiring  the  record  evidence  of  a 
conviction  have  very  little  application  to  a  case  where  the  party  con- 
victed is  himself  upon  the  stand,  and  is  questioned  concerning  it, 
with  a  view  to  sifting  his  character  upon  cross-examination.  The 
danger  that  he  will  falsely  testify  to  a  conviction  which  never  took 
place,  or  that  he  may  be  mistaken  about  it,  is  so  slight  that  it  may 
almost  be  looked  upon  as  purely  imaginary,  while  the  danger  that 
worthless  characters  will  unexpectedly  be  placed  upon  the  stand, 
with  no  opportunity  for  the  opposite  party  to  produce  the  record 
evidence  of  their  infamy,  is  always  palpable  and  imminent.  We  pre- 
fer the  early  English  rule  upon  the  subject:  Priddle's  Case,  Leach 
C.  L.  382 ;  King  Vv  Edwards,  4  T.  R.  440 ;  and  for  the  reasons  which 
were  stated  in  Wilbur  v.  Flood." 

The  judgment  of  the  District  Court  will  be  affirmed. 

All  the  Justices  concurring. 


FUNDERBERG  v.  THE  STATE. 

100  Ala.  36.    (i8p3) 

Indictment  for  Gaming. 

Head,  J.  The'  defendant,  as  all  defendants  in  criminal  trials  are 
privileged  to  do,  could  have  introduced  evidence,  available  to  him, 
of  his  previous  good  general  character,  to  be  considered  by  the  jury 
in  connection  with  the  other  evidence  in  determining  the  question 
of  guilt  or  innocence.  It  is  his  general  character,  we  say,  not  par- 
ticular traits  of  character,  which  he  may  thus  put  in  issue.  In  the 
present  case,  the  defendant  became  a  witness  in  his  own  behalf,  and, 
to  bolster  up  his  testimony,  undertook  to  prove  by  witnesses  that  he 
was  a  man  of  good  character  for  truth  and  veracity.  This  is  not 
allowable.    He  had  not  been,  or  attempted  to  be  impeached  as  a  wit- 


Examination  of  Witnesses  133 

ness,  by  the  State,  either  by  the  introduction  of  evidence  of  bad 
character  on  his  part,  or  of  statements  made  by  him  out  of  court, 
contradictory  of  his  testimony  on  the  trial ;  without  which  he  would 
not  be  permitted  to  sustain  himself  as  a  witness,  by  proof  of  his  good 
character  for  truth  and  veracity.  The  fact  that  his  testimony  con- 
flicted with  that  of  other  witnesses  gave  him  no  right  to  introduce 
evidence  of  his  character.  That  constituted  no  impeachment.  If  the 
defendant  desired  to  avail  himself  of  good  character  to  be  considered 
by  the  jury,  as  a  fact,  on  the  question  of  guilt  or  innocence,  which 
we  have  said  he  had  a  right  to  do,  he  should  have  introduced  his 
general  character,  not  limited  to  truth  and  veracity. 

There  is  no  error  in  the  record  and  the  judgment  is  affirmed. 

Affirmed. 


STATE  V.  SPERITUS. 
ipi  Mo.  24.     (1905) 


Burgess,  P.  J.  On  the  20th  day  of  April,  1904,  there  was  filed 
an  information  in  the  office  of  the  clerk  of  the  Circuit  Court  of  the 
city  of  St.  Louis  by  W.  Scott  Hancock,  assistant  circuit  attorney  of 
said  city,  under  his  oath  of  office,  charging  the  defendant  with  bur- 
glary in  the  second  degree  and  larceny.  Upon  trial  had,  defendant 
was  convicted  of  both  burglary  and  larceny,  and  his  punishment 
fixed  at  three  years'  imprisonment  in  the  penitentiary  for  the  bur- 
glary, and  two  years  for  the  larceny.  After  unavailing  motions  for 
new  trial  and  in  arrest  of  judgment,  defendant  appeals. 

On  the  trial,  the  defendant  testified  in  his  own  behalf  and  stated 
that  Vaughn,  a  witness  for  the  State,  was  at  work  for  him  sometime 
before  the  alleged  burglary  and  larceny,  and  that  he  found  out  that 
Vaughn  had  been  stealing  some  stuff  from  him,  defendant,  and  that 
he  paid  him  off  and  told  him  that  he  had  no  more  work  for  him. 
In  rebuttal,  over  the  objection  of  defendant,  the  State  was  permitted 
to  prove  by  Vaughn  that  he  had  never  been  arrested  for  stealing, 
and  by  another  witness,  that  Vaughn  had  a  good  reputation  for  hon- 
esty. There  was  no  ground  laid  for  the  introduction  of  this  evidence 
other  than  as  stated,  and  defendant  claims  that  its  admission  was 
error.  The  argument  is  that  defendant's  statement  that  he  had  dis- 
charged Vaughn  was  not  intended  as  an  impeachment  of   Vaughn 


134  Cases  on  Evidence 

for  veracity  and  honesty,  but  as  a  reason  why  he  had  stopped  work- 
ing for  the  defendant;  that  if  it  was  not  competent  for  that  purpose, 
the  State's  counsel  should  have  objected  and  moved  to  strike  it  out, 
or  had  the  court  limit  its  effect  and  purpose,  and  that  it  could  not  be 
taken  as  a  pretext  for  bolstering  up  the  State's  witness  and  case  by 
evidence  of  his  good  reputation. 

While  we  fully  appreciate  the  plausibility  of  this  argument,  we 
are  not  impressed  with  its  logic,  and  for  these  reasons :  Conceding, 
for  the  sake  of  the  argument,  that  the  testimony  was  not  competent 
for  the  purpose  of  impeaching  Vaughn  for  veracity  or  honesty,  the 
State  was  not  obliged  to  object,  or  move  to  strike  it  out,  or  to  ask  the 
court  to  limit  its  effect  and  purpose,  but  it  had  a  right  to  do  as  it 
did  do — meet  the  charge  by  countervailing  evidence.  If  a  party  to 
a  suit  introduces  illegal  and  incompetent  evidence,  it  does  not  lie  in 
his  mouth  to  say  that,  because  the  adverse  party  did  not  object  to  it 
or  move  to  strike  it  out,  he  is,  therefore,  bound  by  it  and  precluded 
from  introducing  evidence  tending  to  contradict  it.  Moreover,  if  a 
party  should  object  to  the  introduction  of  evidence  reflecting  upon 
his  character,  or  move  to  strike  it  out  rather  than  meet  it  by  evi- 
dence tending  to  show  it  to  be  untrue,  he  would,  by  so  doing,  run  the 
risk  of  unfavorable  inferences  as  to  his  character  being  drawn  by 
the  court  or  jury.  We  recognize  the  rule  that  evidence  is  not  ad- 
missible to  prove  the  good  character  of  a  witness  or  a  party  to  a 
suit  unless  it  has  in  some  way  been  assailed;  and  in  the  case  in  hand 
we  think  Vaughn's  character  was  assailed  when  it  was  said  he  was 
a  thief. 

Reversed  on  other  grounds. 


,        HOWARD  V.  Mcdonough. 

77  N.  Y.  5^2.    (1879) 

This  action  was  brought  to  recover  for  the  alleged  unlawful  taking 
of  the  materials  and  fixtures  of  a  job  printing  office,  which  were 
seized  by  defendant  McDonough  as  city  marshal,  under  an  execution 
against  a  third  person. 

Upon  the  trial  a  witness  for  plaintiff  testified  that  shortly  after 
the  seizure  he  made  a  list  or  schedule  of  the  articles  which  he  knew 
to  have  been  taken  and  of  their  values,  which  the  witness  testified 


Examination  cr  Witnesses  135 

he  knew;  the  articles  were  very  numerous.  The  witness  was  allowed 
under  objection  and  exception  to  use  the  list  in  testifying  to  the 
articles  and  their  value,  and  after  he  had  gone  through  the  list  it  was 
offered  and  received  in  evidence  under  objection  and  exception.  Held 
no  error. 

The  court  laid  down  the  rule  as  to  the  use  of  memoranda  as  fol- 
lows: 

"The  law  as  to  the  use  of  memoranda  by  witnesses  while  testifying 
is  quite  well  settled  in  this  State,  i.  A  witness  may,  for  the  purpose 
of  refreshing  his  memory,  use  any  memorandum,  whether  made  by 
himself  or  another,  written  or  printed,  and  when  his  memory  has 
thus  been  refreshed,  he  must  testify  to  facts  of  his  own  knowledge, 
the  memorandum  itself  not  being  evidence.  2.  When  a  witness  has 
so  far  forgotten  the  facts  that  he  cannot  recall  them,  even  after 
looking  at  a  memorandum  of  them,  and  he  testifies  that  he  once  knew 
them  and  made  a  memorandum  of  them  at  the  time  or  soon  after 
they  transpired  which  he  intended  to  make  correctly,  and  which  he 
believes  to  be  correct,  such  memorandum,  in  his  own  handwriting, 
may  be  received  as  evidence  of  the  facts  therein  contained,  although 
the  witness  has  no  present  recollection  of  them.  3.  Memoranda 
may  be  used  in  other  cases  which  do  not  precisely  come  under  either 
of  the  foregoing  heads.  A  store  of  goods  is  wrongfully  seized,  and 
an  action  is  brought  to  recover  for  the  conversion.  There  are  thou- 
sands of  items.  No  witness  could  carry  in  his  mind  all  the  items 
and  the  values  to  be  attached  to  them.  In  such  a  case,  a  witness  may 
make  a  list  of  all  the  items  and  their  values,  and  he  may  aid  his 
memory  while  testifying  by  such  list.  He  must  be  able  to  state  that 
all  the  articles  named  in  the  list  were  seized,  and  that  they  were  of 
the  values  therein  stated,  and  he  may  use  the  list  to  enable  him  to 
state  the  items.  After  the  witness  has  testified,  the  memorandum 
which  he  has  used  may  be  put  in  evidence,  not  as  proving  anything 
of  itself,  but  as  a  detailed  statement  of  the  items  testified  to  by  the 
witness.  The  manner  in  which  the  memorandum,  in  such  a  case, 
may  be  used  is  very  much  in  the  discretion  of  the  trial  judge.  He 
may  require  the  witness  to  testify  to  each  item  separately,  and  have 
his,  evidence  recorded  in  the  minutes  of  the  trial ;  and  then  the  in- 
troduction of  the  memorandum  will  not  be  important;  or  he  may  al- 
low the  witness  to  testify  quite  generally  to  the  items  and  their  values ; 
and  receive  the  memorandum  as  the  detailed  result  of  his  examination, 
leaving  to  the  adverse  party  a  more  minute  cross-examination.  With- 
out the  use  of  a  memorandum  in  such  cases,  it  would  be  difficult,  if 


136  Cases  on  Evidence 

not  impossible,  to  conduct  a  trial  involving  the  examination  of  a 
large  number  of  items.  (Driggs  v.  Smith,  36  N.  Y.  Superior  Ct.,  283, 
affirmed  in  this  court;  McCormick  v.  Penn.  Central  R.  R.  Co.,  49  N. 

Y.  303.)" 

Earl,  J.,  reads  for  affirmance. 
All  concur. 

Judgment  affirmed. 


BANK  V.  ZORN. 
14  S.  C.  444.     (1880) 


This  action  was  commenced  January  7th,  1878,  and  was  upon  a 
promissory  note,  made  by  J.  B.  Zorn,  the  defendant,  on  January  29th, 
1876,  for  $157.51,  payable  to  the  order  of  Wroton  &  Dowling  at 
their  office,  in  Charleston,  on  October  ist,  1876,  and  endorsed  before 
maturity  to  the  Bank  of  Charleston  National  Banking  Association, 
as  collateral  security  to  a  note  of  Wroton  &  Dowling,  given  for  money 
borrowed  from  plaintiff,  the  collaterals  being  in  the  proportion  of 
about  $2  for  $1  of  principal  debt.  The  note  of  Wroton  &  Dowling  was 
renewed  several  times  after  October  ist,  1876,  the  defendant's  note, 
with  other  collaterals,  remaining  in  the  possession  of  the  bank. 

The  evidence  showed  that  Wroton  &  Dowling  were  cotton  factors 
and  commission  merchants  in  Charleston,  and  the  defendant,  a  far- 
mer, resident  in  Barnwell  county,  was  one  of  their  customers,  the 
note  in  suit  having  been  given  for  supplies  of  merchandise  advanced 
defendant  by  them,  the  understanding  being  that  it  was  to  be  met  by 
the  proceeds  of  cotton  to  be  shipped  to  them  by  defendant  for  sale 
on  commission,  as  was  the  general  custom  in  Charleston  between 
factors  and  their  country  customers. 

Simpson,  C.  J.  It  is  objected,  second,  that  an  account  current  be- 
tween the  respondent  and  Wroton  &  Dowling  was  allowed  to  be 
made  use  of  by  the  defendant,  respondent,  as  a  witness,  to  refresh 
his  memory  as  to  the  amount  of  money  in  the  hands  of  Wroton  & 
Dowling,  at  a  certain  date,  sufficient  to  have  discharged  the  note 
in  question  and  this  is  made  the  second  ground  of  appeal.  The  rule 
upon  this  subject,  in  its  broadest  outline,  embraces  two  classes  of 
cases:  first,  where  the  witness,  after  referring  to  the  paper,  speaks 
from  his  own  memory,  and  depends  upon  his  own  recollection  as  to 


Examination  of  Witnesses  137 

the  facts  testified  to;  second,  where  he  relies  upon  the  paper  and 
testifies  only  because  he  finds  the  facts  contained  therein.  In  the  first 
class  the  paper  is  always  permitted  to  be  used  by  the  witness  without 
regard  to  when  or  by  whom  made. 

In  the  second  class  this  rule  of  admission  is  much  more  stringent. 
In  fact,  it  cannot  be  used  unless  it  be  an  original  paper  made  by  the 
witness  himself,  and  contemporaneously  with  the  transaction  referred 
to. 

Admitted  under  any  other  circumstances,  it  would  be  obnoxious  to 
the  doctrine  of  hearsay  and  other  important  principles  regulating  the 
admission  of  evidence,  and  would  render  the  administration  of  jus- 
tice uncertain  and  doubtful.  The  principles  above  laid  down  will 
be  found  sustained  in  i  Greenl.,  paragraph  436;  State  v.  Rawls,  2 
N.  &  McC.  331;  Cleverly  v.  McCullough,  2  Hill  446;  and  O'Neale 
V.  Walton,  I  Rich.  234.  In  this  case  the  account  current  was  offered 
in  evidence,  but,  upon  objection,  was  ruled  out.  The  witness  was 
afterwards  permitted  to  examine  it,  and  upon  this  examination  he 
was  prepared  to  speak  from  recollections,  and  did  so  speak,  as  it 
appears  from  the  record — at  least  so  we  understand  from  the  brief 
agreed  upon  by  the  counsel.  Whether  he  was  entitled  to  credit, 
testifying  under  such  circumstances,  or  could  speak  from  memory 
after  examining  the  paper,  was  for  the  jury,  and  is  not  a  matter 
before  us.  The  question  here  is,  was  it  legally  competent  for  him 
thus  to  testify?  We  think  this  case  falls  within  the  first  class  above 
referred  to,  and  that  there  was  no  error  on  the  part  of  the  circuit 
judge  in  ruling  the  testimony  competent. 

The  judgment  below  is  affirmed  and  the  appeal  dismissed. 

McIvER  and  McGowan,  A.  J.'s,  concurred. 


MILLER  V.  PREBLE,  Admr. 
142  Ind.  632.     (1895) 

Jordan^  J.  Appellee  instituted  this  action  against  appellant,  to 
recover  a  money  judgment,  and  to  enforce  a  vendor's  lien  against 
the  real  estate  described  in  the  complaint. 

A  trial,  by  jury,  resulted  in  a  verdict  in  favor  of  appellee,  and  over 
appellant's  motion  for  a  new  trial  judgment  was  rendered  for  the 


138  Cases  on  Evidence 

amount  assessed  by  the  jury,  and  for  a  foreclosure  of  the  lien  in 
question. 

The  first  contention  of  the  appellant's  learned  counsel  is,  that  there 
was  error  in  the  trial  court,  allowing  one  John  Ingles,  a  witness  in 
behalf  of  appellee  to  testify  relative  to  certain  statements  mad^  by 
appellant  in  a  former  examination.  This  question  is  not  clearly  pre- 
sented by  the  record,  for  the  reason  that  the  objections  and  exceptions 
interposed  by  appellant  to  the  evidence,  and  the  ruling  of  the  court 
thereon,  are  so  irregular  and  in  such  confusion  in  the  bill  of  excep- 
tions as  to  leave  the  question  in  doubt  as  to  what  were  the  grounds 
of  the  objections  made.  It  may  be  said  to  appear,  however,  from  the 
statements  of  Ingles,  when  on  the  witness-stand,  that  he  was  a  ste- 
nographer, and  that  previous  to  the  trial  he  had  acted  in  that  capacity, 
in  taking  down  in  shorthand  notes  an  examination  of  appellant,  had 
before  one  Jacob  Kroch,  whose  official  character,  if  any  is  not  dis- 
closed. Appellee,  for  the  purpose  of  impeachment,  sought  to  prove 
by  this  witness,  that  the  appellant  had,  upon  the  occasion  of  this 
examination,  made  statements  upon  certain  material  points  which 
were  different  from  those  made  by  him  upon  the  trial,  relative  to 
the  same  points. 

It  further  appears  that  the  witness,  after  refreshing  his  memory 
by  his  shorthand  notes  made  by  him  upon  the  aforesaid  occasion,  read 
therefrom  to  the  jury  certain  parts  of  appellant's  examination,  bear- 
ing upon  the  question  involved.  The  witness  stated  that  after  re- 
freshing his  memory  by  these  notes  he  remembered,  independently 
thereof  that  the  statements  which  he  had  read  to  the  jury  were  those 
made  by  the  appellant  upon  said  examination.  There  is  no  contention 
that  these  statements  as  given  to  the  jury  by  this  witness  were  not 
correct. 

Under  the  facts,  so  far  as  they  are  disclosed  to  us  by  the  record, 
the  court  did  not  err  in  permitting  this  witness  to  thus  testify.  Sage 
V.  State,  127  Ind.  15;  Bass  v.  State,  136  Ind.  165. 

But  appellant's  counsel  urge  and  say  "That  this  examination  bore 
the  signature  of  appellant,  and  was  taken  under  the  statute,  and  if 
appellee  desired  to  use  it  upon  the  trial  to  impeach  appellant,  as  a 
witness,  he  ought  to  have  introduced  the  written  examination  as  an 
entirety  and  not  in  parts."  But  this  latter  proposition  is  not  borne 
out  or  presented  by  the  record,  inasmuch  as  it  does  not  appear  there- 
from, that  the  examination  in  question  was  taken  before  any  author- 
ized officer,  or  that  it  had  been  filed  as  a  deposition  in  court,  or  that 
it  criited  at  the  time  of  the  trial  in  any  other  form  than  the  short- 


Examination  of  Witnesses  139 

hand  notes  of  the  stenographer.  Surely  if  the  examination  had  beeti 
taken  by  appellee,  and  filed  under  the  statute,  and  had  the  latter 
seen  fit  to  have  used  it  upon  the  trial  to  impeach  appellant,  he  could 
not  have  been  compelled  to  read  the  entire  deposition  to  the  jury, 
but  would  have  been  permitted  to  select  and  read  such  parts,  if  he 
desired,  as  tended  to  contradict  or  impeach  the  witness  upon  the 
material  point  in  question.  In  this  event,  however,  appellant  would 
have  had  the  right,  at  the  proper  time,  to  have  read  to  the  jury  so 
much,  or  all,  if  necessary  and  pertinent,  as  tended  to  explain  or 
modify  the  statements  introduced  against  him,  or  as  tended  to  show 
that  his  testimony  on  the  examination  upon  the  point  involved  was 
consistent  with  the  statements  made  by  him  upon  the  trial.  Bass  v. 
State,  supra. 

The  next  alleged  error  of  which  appellant  complains  is  that  of 
the  court  in  admitting  the  depositions  of  Catherine  Earley  and  W.  S. 
Young,  for  the  reason,  as  insisted,  that  these  depositions  embraced 
evidence  in  chief  only.  The  cause  was  to  put  at  issue  by  a  denial, 
and  plea  of  payment,  and  the  depositions  in  controversy  seem  to  con- 
tain evidence,  which  at  least  tends  to  rebut  that  of  appellant  given 
under  his  plea  of  payment,  and  therefore  they  were  proper  to  be 
read  to  the  jury  in  rebuttal.  But  if  it  were  conceded  that  these  depo- 
sitions were  wholly  in  chief,  it  however  was  within  the  discretion  of 
the  court  to  admit  them  at  any  stage  of  the  trial,  and  unless  an 
abuse  of  this  discretion,  prejudicial  to  appellant,  was  properly  dis- 
closed by  the  record,  the  action  of  the  court  in  admitting  them  in  re- 
buttal would  not  alone  constitute  reversible  error.  Western  Union 
Tel.  Co,  V.  Buskirk,  107  Ind.  549;  Stewart  v.  Smith,  11 1  Ind.  526. 

There  is  no  apparent  available  error,  and  the  judgment  is  therefore 

Affirmed. 


OVERTOOM  V.  C.  &  E.  I.  R.  R.  CO. 

181  III.  323.     (1899) 

Mr.  Justice  Carter  delivered  the  opinion  of  the  court: 

The  appellant  brought  her  action  against  appellee,  in  the  Superior 

Court  of  Cook  County,  to  recover  damages  for  the  alleged  wrongful 

killing  of  her  intestate,  Adrian  Overtoom.     There  was  a  verdict  and 

a  judgment  for  the  defendant,  which  judgment  has  been  affirmed  by 


140  Cases  on  Evidence 

the  Appellate  Court.  The  errors  alleged  by  appellant  on  this  her 
further  appeal  relate  to  the  admission  and  exclusion  of  evidence  and 
to  the  giving  and  refusing  of  instructions. 

Edward  H.  Senniflf,  who,  acting  as  attorney  and  stenographer  for 
appellee  took  in  shorthand  notes  the  testimony  of  the  witnesses  at 
the  coroner's  inquest  and  upon  the  trial  below,  was  called  as  a 
witness  on  appellee's  behalf,  testified  that  his  notes  were  correct,  and 
against  the  objection  of  appellant,  was  permitted  to  read  to  the  jury 
his  notes  so  taken  of  the  testimony  of  Thomas  J.  Silverman,  a  wit- 
ness for  appellant,  for  the  purpose  of  impeaching  Silverman.  Silver- 
man had  testified  on  the  trial  that  he  was  about  one  hundred  yards 
away  and  saw  the  train  strike  Overtoom,  and  that  he  ran  to  him  and 
helped  turn  him  over;  that  the  gates  were  open  at  the  time  and  that 
the  train  was  running  thirty  or  thirty-five  miles  an  hour;  that  he  did 
not  hear  the  bell  ring  or  whistle  blow;  that  the  freight  train  made  a 
gjeat  deal  of  noise.  The  witness  Senniff  read  from  his  notes  to  the 
effect  that  Silverman  testified  at  the  coroner's  inquest  that  the  gates 
were  down  at  the  time  of  the  accident.  Senniff  testified  that  he 
remembered  in  a  general  way,  what  the  testimony  was,  but  could  not 
say  that  he  had  any  independent  recollection  outside  of  his  notes. 
The  witness  did  not  pretend  to  testify  from  memory  refreshed  by 
his  notes,  but  read  his  translation  of  so  much  of  his  notes  to  the 
jury  as  evidence  as  was  called  for,  the  court  remarking  on  overruling 
plaintiff's  objection,  that  it  was  "much  better  than  testifying  from 
memory."  It  is  not  necessary  in  this  case  to  consider  whether  the 
notes  of  testimony  taken  by  one  who  was  present  and  heard  it,  and 
who  swears  to  their  correctness,  may  not  in  some  cases  be  competent 
as  the  best  evidence  of  what  that  testimony  was.  (See  Mineral  Point 
Railroad  Co.  v.  Keep,  22  111.  9;  Roth  v.  Smith,  54  id.  431;  Iglehart 
V.  Jernegan  16  id.  513;  Schoonover  v.  Myers,  28  id.  308;  Wilson  v. 
Genseal,  113  id.  403;  Kankakee  and  Seneca  Railroad  Co.  v.  Horan, 
131  id.  288;  Luetgart  v.  Volker,  153  id.  385;  Brown  v.  Luehrs,  79  id. 
575.)  But  in  Phares  v.  Barber,  61  111.  271,  this  court  held  that  it 
was  not  error  to  exclude  a  transcript  of  a  stenographic  report  of  a 
witness'  former  testimony,  offered  for  the  purpose  of  contradiction. 
In  the  case  at  bar,  the  stenographer's  notes,  or  the  transcript  of  them, 
were  incompetent  for  another  reason:  The  testimony  of  Silverman 
was  taken  by  the  coroner,  and,  as  the  statute  required  it,  we  will 
presume  it  was  written  out  and  signed  by  the  witness  and  filed  and 
preserved  in  the  office  of  the  Coroner.  (Rev.  Stat.  chap.  31,  sec.  18.) 
Had  his  deposition  thus  taken  been  produced  and  Silverman's  atten- 


Examination  op  Witnesses  141 

# 

tion  properly  directed  to  it,  it  could  have  been  used  to  contradict  him 
(Consolidated  Ice  Machine  Co.  v.  Keifer,  134  111.  481;  United  States 
Life  Ins.  Co.  v.  Vocke,  129  id.  557.)  That  deposition  was  the  best 
evidence,  and  the  stenographer's  notes  were  not  admissible. 

The  error  in  allowing  the  notes  of  Senniff  to  be  read  in  evidence 
was  intensified  by  the  following  erroneous  instruction  given  at  the 
request  of  the  defendant: 

"The  jury  are  instructed  that  if  they  believe  any  witness  has  testi- 
fied falsely,  then  the  jury  may  disregard  such  witness'  testimony, 
except  in  so  far  as  it  may  have  been  corroborated  by  other  credible 
evidence  in  the  case  which  you  believe  to  be  true." 

A  witness  may  have  testified  falsely  upon  some  matter  inquired 
about,  from  forget  fulness  or  honest  mistake,  and  in  such  case  the 
jury  would  not  be  authorized  to  disregard  his  entire  testimony, 
whether  corroborated  or  not.  It  is  the  corrupt  motive,  or  the  giving 
of  false  testimony,  knowing  it  to  be  false,  that  authorizes  a  jury  to 
disregard  the  testimony  of  a  witness  and  the  court  to  so  instruct  them. 
(Pollard  V.  People,  69  111.  148;  Pennsylvania  Co.  v.  Conlan,  loi  id. 
93;  II  Encyc.  of  PI.  &  Pr.  304.)  Standing  alone,  this  instruction 
has  other  patent  defects  not  necessary  here  to  mention. 

The  judgment  of  the  Appellate  Court  and  that  of  the  Superior 
Court  are  both  reversed,  and  the  cause  is  remanded  to  the  latter  court 
for  further  proceedings  not  inconsistent  with  what  we  have  here  said. 

Reversed  and  remanded. 


COMMONWEALTH  v.  JEFFS. 
1^2  Mass.  5,     (1882) 

Indictment  for  the  manslaughter  of  James  M.  Jeffs,  at  Gloucester, 
on  September  i,  1881. 

At  the  trial  in  the  Superior  Court,  before  Rockwell,  J.,  the  govern- 
ment offered  evidence  of  statements  made  and  evidence  given  by  the 
defendant  at  the  inquest.  To  contradict  this  evidence,  the  defendant 
called  one  Stickney,  a  short-hand  reporter  and  editor  of  a  newspaper 
in  which  a  report  of  the  defendant's  statements  and  evidence  at  the 
inquest  had  been  published,  and  asked  him  what  the  defendant  said 
at  the  inquest.  He  answered,  that  he  could  state  by  refreshing  his 
memory  by  the  report  in  the  newspaper,  and  was  allowed  to  so  re- 


142  Cases  on  Evidence 

fresh  his  memory;  but,  as  the  defendant's  counsel  was  in  the  act  of 
handing  him  the  paper,  the  witness  said  that,  upon  reflection,  he  di'l 
not  need  to  look  at  it,  and  did  not  actually  take  the  paper  in  his  hands 
at  that  time,  but  proceeded  to  give  his  evidence.  The  reporter  aho 
stated,  that  his  minutes  of  the  evidence  had  gone  into  the  waste- 
basket,  and  that  the  newspaper  only  contained  from  one-third  to  one- 
half  of  the  full  evidence,  being  the  most  important  part  of  the  same. 

On  cross-examination,  the  witness  was  asked  a  question  by  the 
government,  and  replied  that  he  could  better  answer  the  question  if 
he  was  allowed  to  refresh  his  memory  from  said  newspaper,  where- 
upon the  attorney  for  the  government  said,  "Very  well,  you  may  do 
so."  He  refreshed  his  memory  from  the  newspaper,  and  then  an- 
swered. The  counsel  for  the  defendant  then  asked  to  have  the  news- 
paper read  to  the  jury,  or  so  much  of  the  report  in  it  as  related  to  the 
inquiry  of  the  government.  The  judge,  on  the  objection  of  the  govern- 
ment, excluded  the  same.    The  defendant  alleged  exceptions. 

EndicoTt,  J.  A  witness  may  be  allowed  to  refresh  his  memory  by 
looking  at  a  printed  or  written  paper  or  memorandum,  and,  if  he 
thereby  recalls  a  fact  or  circumstance,  he  may  testify  to  it.  It  is 
not  the  memorandum  which  is  evidence,  but  the  recollection  of  the 
witness.  We  are  not  aware  of  any  case  where  it  has  been  held  that 
the  memorandum  could  be  put  in  evidence  simply  because  it  refreshed 
the  memory  of  the  witness.  Commonwealth  v.  Ford,  130  Mass.  64. 
In  that  case,  and  in  many  of  the  cases  cited  therein,  it  is  stated  that 
the  memorandum  per  se  cannot  be  used  in  evidence. 

In  Field  v.  Thompson,  119  Mass.  151,  it  was  held  that  the  memo- 
randum was  not  competent  and  that  it  could  not  be  put  in  evidence 
in  confirmation  of  the  recollection  of  the  witness.  Alcock  v.  Royal 
Exchange  Assur.  Co.,  13  Q.  B.  292.  On  the  other  hand,  where  a  wit- 
ness produces  a  memorandum  to  assist  his  memory,  the  opposite  party 
is  entitled  to  inspect  it,  and  he  may  cross-examine  the  witness  in  re- 
gard to  it;  and  it  may  be  shown  to  the  jury,  not  for  the  purpose  of 
establishing  the  facts  therein  contained,  but  for  the  purpose  of  show- 
ing that  it  could  not  properly  refresh  the  memory  of  the  witness. 
But  even  in  such  a  case,  only  those  portions  of  the  memorandum 
which  relate  to  the  cause  on  trial  and  the  testimony  of  the  witness 
can  be  put  in  evidence.    Commonwealth  v.  Haley,  13  Allen,  587. 

In  Dugan  v.  Mahoney,  11  Allen,  572,  it  was  held  that  if  a  witness, 
upon  looking  at  a  memorandum  made  by  him  at  the  time,  is  able  to 
testify  to  the  delivery  of  goods,  the  testimony  is  admissible,  although 
the  witness  bas  no  present  memory  of  the  transaction,  and  the  mem- 


Examination  of  Witnesses  143 

orandum  itself  is  incompetent.  In  that  case,  the  memorandum  con- 
sisted of  certain  entries  made  in  a  book,  and  it  was  said  in  the  opin- 
ion, that  the  books  were  properly  submitted  to  the  jury,  because  the 
testimony  of  the  witness  to  his  positive  knowledge  of  the  fact  in  issue 
and  his  means  of  knowledge  were  regularly  before  the  jury,  and  it 
was  for  the  jury  to  consider  them.  See  Rex  v.  Ramsden,  2  C.  &  P. 
603.  So  a  witness  may  be  required  in  the  discretion  of  the  court  to 
look  at  memoranda  or  papers  to  aid  his  recollection.  Chapin  v.  Lap- 
ham,  20  Pick.  467.  And  in  Commonwealth  v.  Fox,  7  Gray,  585,  a 
witness  was  called  who  could  not  read  or  write,  and  a  paper  signed 
with  her  mark  was  produced  as  a  memorandum  to  refresh  her  recol- 
lection; and  it  was  held  that  the  paper  could  not  be  read  to  the  wit- 
ness in  the  presence  of  the  jury,  but  that  the  witness  should  withdraw 
with  one  of  the  counsel  on  each  side  and  the  paper  should  be  read 
to  her  without  comment. 

In  the  case  at  bar,  one  of  the  witnesses  for  the  defendant  was 
allowed,  in  answer  to  a  question  put  by  the  attorney  for  the  govern- 
ment, upon  cross-examination  to  refresh  his  memory  from  a  report, 
published  in  a  newspaper,  of  the  defendant's  statements  at  the  in- 
quest, and  the  defendant  thereupon,  without  putting  any  question  to 
the  witness,  asked  to  have  so  much  of  the  paper  as  related  to  the 
inquiry  by  the  district  attorney  read  to  the  jury.  The  court  excluded 
it.  It  does  not  appear  what  facts  the  witness  testified  to  after  look- 
ing at  the  paper,  or  what  were  the  contents  of  the  report,  or  that  the 
same  was  called  to  the  attention  of  the  presiding  judge,  or  that  it 
was  offered  for  the  purpose  of  showing  that  it  could  not  properly 
refresh  the  memory  of  the  witness,  or  that  any  reason  was  given  or 
any  ground  was  stated  why  it  was  admissible.  It  is  consistent  with 
the  bill  of  exceptions  that  the  defendant  offered  it  for  the  purpose 
of  confirming  the  testimony  of  her  own  witness. 

It  may  be  that  under  certain  circumstances  the  paper  might  prop- 
erly have  been  admitted,  but,  as  the  case  is  stated,  it  falls  within 
none  of  the  exceptions  to  the  general  rule,  that  a  memorandum 
used  to  refresh  the  memory  of  a  witness  is  not  in  itself  evidence  for 
the  jury.  The  bill  of  exceptions  affords  us  no  means  of  determining 
that  its  exclusion  was  wrong. 

Exceptions  overruled. 


PART  m. 
PRINCIPLES  AND  RULES  OF  EXCLUSION. 

RELEVANCY  AND  MATERIALITY. 

HUDSON  V.  C.  &  N.  W.  R.  R.  CO. 
SP  Iowa  581.     (1882) 

Plaintiff  claims  damages  in  the  sum  of  one  hundred  dollars  for  an 
injury  to  a  horse,  alleged  to  have  been  caused  by  a  defective  cross- 
ing over  defendant's  road;  the  defect  consisting  in  placing  the  plank 
on  the  inside  of  one  of  the  iron  rails  of  the  road  so  far  from  the 
rail  that,  in  driving  the  horse  over  the  crossing,  he  stepped  into  the 
aperture  thus  made,  and  was  injured  and  crippled. 

There  was  a  trial  by  jury  and  a  verdict  and  judgment  for  the  plain- 
tiff.   Defendant  appeals. 

RoTHROCK,  J.  Plaintiff  introduced  a  witness  who  testified  'that, 
some  six  months  before  the  accident  complained  of,  a  horse  driver! 
by  him  over  the  crossing  in  question  got  his  foot  between  the  plank 
and  the  rail  at  the  same  place  where  plaintiff's  horse  was  injured. 
The  defendant  objected  to  this  testimony  as  incompetent.  The  objec- 
tion was  overruled  and  an  exception  taken.  Upon  this  point  in  the 
case  the  Circuit  Court  certified  the  following  question:  "Ought  the 
court  to  have  admitted  evidence  of  former  accidents  at  the  same 
place  to  parties  other  than  the  plaintiff?" 

In  Collins  v.  Inhabitants  of  Dorchester,  6  Cush.  396,  the  plaintiff 
was  injured  by  driving  against  a  post  in  a  highway.  He  sought  to 
prove  that  another  person  had  met  with  precisely  the  same  kind  of 
accident  before,  at  the  same  place,  and  from  the  same  cause. 

In  determining  the  question  the  court  said:  "The  testimony  of 
Sprague  that  he,  before  the  injury  complained  of  by  the  plaintiff, 
received  a  similar  injury  at  or  near  the  same  place,  without  any  neg- 
ligence on  his  part,  was  not  competent  for  the  purpose  of  proving 
that  the  road  was  defective  at  the  time  and  in  the  place  of  the  plain- 
tiff's injury.  It  was  testimony  concerning  collateral  facts  which  fur- 
nish no  legal  presumption  as  to  the  principal  facts  in  dispute,  and 
which  defendants  were  not  bound  to  be  prepared  to  meet.  2  Stark. 
on  Ev.,  381 ;  i  Green.  Ev.  sec.  52." 

144 


Relevancy  and  Materiality  145 

Parker  v.  Portland  Publishing  Qjmpany,  69  Maine,  173,  was  an 
action  to  recover  damages  for  negligence  in  not  properly  lighting  a 
passage  way.  Evidence  was  received  tending  to  show  at  different 
times  the  condition  of  the  hallway  and  the  entrance  to  the  rooms  of 
the  building  as  to  light — whether  more  or  less  or  none — and  of  what 
had  happened  to  other  men  at  other  times,  and  of  their  fortunate 
escape  from  peril.  The  court,  Appleton,  J.,  said:  "These  facts  were 
all  collateral  to  the  main  issue,  and  should  have  been  excluded."  Cit- 
ing I  Greenleaf  on  Evidence,  Sec.  52.  It  was  further  said:  "If  evi- 
dence of  this  character  is  receivable,  contradictory  proofs  would 
be  admissible,  and  there  would  be  as  many  collateral  issues  as  there 
were  collateral  facts  and  witnesses  testifying  to  them."  It  was  held 
that  allowing  such  evidence  to  be  introduced  was  against  the  entire 
weight  of  judicial  authority;  citing  Hubbard  v.  R.  R.,  39  Maine,  506; 
Aldrich  v.  Pelham,  i  Gray,  510;  Kidder  v.  Dunstable,  11  id.  342;  and 
other  cases. 

In  Blair  v.  Pelham,  118  Mass.  420,  an  action  for  a  personal  in- 
jury caused  by  a  defect  in  a  highway,  it  was  held  that  what  happened 
at  the  same  place  a  year  before  was  rightly  rejected. 

A  different  rule  was  announced  in  the  case  of  Kelley  v.  The  South- 
ern Minn.  R.  R.  Co.,  Sup.  Court  of  Minn.,  N.  W.  Rep.,  Vol.  9,  588. 
But  it  appears  in  that  case  that  the  testimony  objected  to  showed 
that  the  accident  to  which  it  related  "was  produced  by  a  different 
cause,  and  at  a  point  in  the  crossing  about  the  condition  of  which 
there  was  no  complaint,"  and  the  court  held  that  the  defendant,  if  it 
deemed  the  evidence  prejudicial,  should  have  moved  to  have  it  stricken 
out.  The  rule  as  stated  in  the  opinion  in  that  case  is  not  discussed, 
and  no  authority  is  given  in  its  support. 

We  think,  both  upon  principle  and  authority,  the  evidence  in  ques- 
tion was  improperly  admitted,  and  that  the  question  certified  must  be 
answered  in  the  negative. 

Reversed. 


HOUSE  v.  METCALF. 
27  Conn.  631.     (1858) 


Action  on  the  case  for  damage  from  a  nuisance.  The  declaration 
alleged  that  the  defendant,  on  the  21st  day  of  March,  1857,  was  pos- 
sessed and  in  the  actual  occupation  and  use  of  a  certain  gristmill, 
in  the  town  of  Lebanon,  erected  within  the  inclosed  limits  of  a  cer- 


146  Cases  on  Evidence 

tain  highway  and  within  twenty  feet  of  the  traveled  path,  which  was 
operated  by  a  large  overshot  water  wheel,  uninclosed  and  uncovered, 
which  when  in  motion  was  calculated  to  frighten  horses;  that  the 
mill  and  wheel  were,  and  ever  since  they  had  been  erected  had  been 
a  public  nuisance;  and  that,  on  said  21st  day  of  March,  the  plaintiff 
was  driving  by  the  mill,  along  the  traveled  path,  in  a  buggy,  with  a 
valuable  horse  belonging  to  him,  and  was  using  care  and  skill  in 
driving  when  the  horse  became  frightened  at  the  water  wheel,  which 
was  in  motion,  and  to  such  a  degree  that  the  plaintiff  could  not  con^ 
trol  him,  and  ran  with  great  violence  until  he  fell  and  threw  out  the 
plaintiff  with  great  force  upon  the  ground,  hurting  him  seriously,  and 
greatly  injuring  the  horse  and  breaking  the  buggy  in  pieces.  The  case 
was  tried  by  the  jury,  on  the  general  issue. 

On  the  trial,  the  plaintiff,  for  the  purpose  of  showing  that  the  mill 
was  a  nuisance,  offered  one  Arabella  Cobb  as  a  witness,  to  prove  that 
in  the  year  1844,  when  the  mill  was  the  same  in  all  respects,  she 
was  driving  along  the  highway  leading  by  the  mill,  when  the  wheel 
was  in  motion,  and  that  her  horse  became  frightened  thereby.  The 
plaintiff  did  not  claim  that  this  fact  was  ever  known  to  the  defendant. 
To  the  admission  of  this  testimony  the  defendant  objected,  but  the 
court  admitted  it. 

Sanford,  J.  I.  The  defendant  claims  that  the  testimony  of  Ara- 
bella Cobb,  to  prove  that  the  same  wheel  which  frightened  the  plain- 
tiff's horse  also  frightened  hers,  ought  not  to  have  been  received. 

We  think  it  was  properly  admitted.  The  plaintiff's  claim  was, 
that  the  wheel  in  motion  was  an  object  naturally  calculated  to  frighten 
horses  traveling  on  the  public  road,  and  was,  therefore,  a  public  nui- 
sance. And  we  think  he  had  a  right,  not  only  to  show  the  facts 
regarding  its  size,  form,  location,  exposure  to  view,  and  mode  of  op- 
eration, from  which  the  jury  might  infer  what  effects  it  would 
naturally,  necessarily,  or  probably  produce,  but  also  to  prove  what 
effects  it  had  produced  in  fact.  A  single  instance  should  indeed  be 
of  little  avail  standing  alone.  A  number  of  instances  might  afford 
satisfactory,  if  not  demonstrative  evidence.  And  the  inquiry  in  every 
such  case  is,  not  whether  the  evidence  offered  is  sufficient  to  prove 
the  fact  claimed  but  whether  it  tends  to  prove  it. 

It  is  claimed  that  the  evidence  was  objectionable  because  it  pre- 
sented a  new  issue  to  the  triers,  and  operated  as  a  surprise  upon  the 
defendant.  That  the,  reception  of  the  evidence  rendered  proper  an 
inquiry  into  the  character  of  Miss  Cobb's  horse,  and  her  ability  to 
manage  him,  and,  indeed,  into  all  of  the  circumstances  under  whicli 


Relevancy  and  Materiality  147 

y 

the  accident  occurred,  is  not  to  be  denied;  as  the  value  of  the  result 
always  depends  upon  the  fairness  of  the  experiment,  and  the  triers 
cannot  know  how  to  appreciate  the  one,  until  the  other  is  made 
known  to  them.  But  every  piece  of  evidence,  introduced  in  any 
case,  is,  or  may  be,  subjected  to  the  same  or  similar  tests,  and  can- 
not for  that  reason  be  rejected.  And  because  the  fact  to  be  estab- 
Hshed  to  wit,  that  the  wheel  was  an  object  of  terror  to  horses,  was 
directly  involved  in  the  issue  on  the  record,  and  the  evidence  objected 
to  tended  to  establish  it,  and  therefore  to  prove  the  issue,  the  defend- 
ant was  bound  to  come  prepared  to  meet  it.  It  was  of  no  importance 
that  the  defendant  was  ignorant  of  Miss  Cobb's  misfortune.  The 
question  was,  whether  testimony  that  her  horse  was  frightened  by 
the  wheel  conduced  to  prove  that  wheel  a  nuisance;  and  the  defend- 
ant's ignorance  of  the  accident  had  no  bearing  on  the  question. 

New  Trial  not  Advised. 


GRAND  TRUNK  R.  R.  CO.  v.  RICHARDSON. 

91  U.  S.  454-     (1875) 

This  is  an  action  by  the  defendants  in  error  to  recover  damages  for 
the  destruction  of  their  saw-mill,  lumber-shed,  store,  boardinghouse, 
manufactured  lumber,  and  other  personal  property,  by  fire,  alleged  to 
have  been  communicated  by  a  locomotive  engine  of  the  plaintiff  in 
error  on  the  seventh  day  of  June,  1870. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court: 
The  plaintiffs  below  were  permitted  to  adduce  evidence  that  those 
of  the  injured  buildings  which  were  within  the  lines  of  the  road 
way  had  been  erected  within  those  lines  by  the  license  of  the  com- 
pany, for  the  convenience  of  delivering  and  receiving  freight.  The 
admission  of  this  evidence  is  the  subject  of  the  first  assignment  of 
error ;  and  in  its  support  it  has  been  argued  that  it  was  the  duty  of 
the  railroad  company  to  preserve  its  entire  road  way  for  the  use  for 
which  it  was  incorporated;  that  it  had  no  authority  to  grant  licenses 
to  others  to  use  any  part  thereof  for  the  erection  of  buildings ;  and, 
therefore,  that  the  license  to  the  plaintiff's,  if  any  was  made,  was 
void.  Thus  the  basis  of  the  objection  to  the  evidence  appears  to  be, 
that  it  was  immaterial.  We  are,  however,  of  opinion  that  it  was 
properly  admitted.  If  the  buildings  of  the  plaintiffs  were  rightfully 
where  they  were,  if  there  was  no  trespass  upon  the  roadway  of  the 
company,  it  was  clearly  a  pertinent  fact  to  be  shown;  and  while  it 


148  Cases  on  Evidence 

must  be  admitted  that  a  railroad  company  has  the  exclusive  control 
of  all  the  land  within  the  lines  of  its  roadway,  and  is  not  at  liberty 
to  alienate  any  part  of  it  so  as  to  interfere  with  the  full  exercise  of 
the  franchises  granted,  we  are  not  prepared  to  assert  that  it  may  not 
license  the  erection  of  buildings  for  its  convenience,  even  though 
they  may  be  also  for  the  convenience  of  others.  It  is  not  doubted 
that  the  defendant  might  have  erected  similar  structures  on  the 
ground  on  which  the  plaintiffs'  buildings  were  placed,  if  in  its  judg- 
ment the  structures  were  convenient  for  the  receipt  and  delivery  of 
freight  on  its  road.  Such  erections  would  not  have  been  inconsistent 
with  the  purposes  for  which  its  charter  was  granted.  And,  if  the 
company  might  have  put  up  the  buildings,  why  might  it  not  license 
others  to  do  the  same  thing  for  the  same  object;  namely,  the  increase 
of  its  facilities  for  the  receipt  and  delivery  of  freight?  The  public 
is  not  injured,  and  it  has  no  right  to  complain,  so  long  as  a  free  and 
safe  passage  is  left  for  the  carriage  of  freight  and  passengers.  Xhere 
is,  then  no  well-founded  objection  to  the  admission  of  evidence  of  a 
license,  or  evidence  that  the  plaintiff's  buildings  were  partly  within 
the  line  of  the  roadway  by  the  consent  of  the  defendant. 

The  second  assignment  of  error  is,  that  the  court  excluded  testi- 
mony offered  by  the  defendant  to  show  that  the  usual  practice  of 
railroad  companies  in  that  section  of  the  country  was  not  to  employ 
a  watchman  for  bridges  like  the  one  destroyed.  It  is  impossible 
for  us  to  see  any  reason  why  such  evidence  should  have -been  ad- 
mitted. The  issue  to  be  determined  was,  whether  the  defendant  had 
been  guilty  of  negligence;  that  is,  whether  it  had  failed  to  exercise 
that  caution  and  diligence  which  the  circumstances  demanded,  and 
which  prudent  men  ordinarily  exercise.  Hence  the  standard  by  which 
its  conduct  was  to  be  measured  was  not  the  conduct  of  other  railroad 
companies  in  the  vicinity;  certainly  not  their  usual  conduct.  Besides, 
the  degree  of  care  which  the  law  requires  in  order  to  guard  against 
injury  to  others  varies  greatly  according  to  the  circumstances  of 
the  case.  When  the  fire  occurred  which  caused  the  destruction  of 
the  plaintiffs'  buildings,  it  was  a  very  dry  time,  and  there  was  a  high 
wind.  At  such  a  time,  greater  vigilance  was  demanded  than  might 
ordinarily  have  been  required.  The  usual  practice  of  other  companies 
in  that  section  of  the  country  sheds  no  light  upon  the  duty  of  the 
defendant  when  running  locomotives  over  long  wooden  bridges,  in 
near  proximity  to  frame  buildings,  when  danger  was  more  than  com- 
monly imminent. 

The  third  assignment  of  error  is,  that  the  plaintiffs  were  allowed 


Relevancy  and  Materiality  149 

to  prove,  notwithstanding  objection  by  the  defendant,  that,  at  various 
times  during  the  same  summer  before  the  fire  occurred,  some  of  the 
defendant's  locomotives  scattered  fire  when  going  past  the  mill  and 
bridge,  without  showing  that  either  of  those  which  the  plaintiffs 
claimed  communicated  the  fire  was  among  the  number,  and  without 
showing  that  the  locomotives  were  similar  in  their  make,  their  state 
of  repair  or  management,  to  those  claimed  to  have  caused  the  fire 
complained  of.  The  evidence  was  admitted  after  the  defendant's  case 
had  closed.  But,  whether  it  was  strictly  rebutting  or  not,  if  it 
tended  to  prove  the  plaintiffs'  case,  its  admission  as  rebutting  was 
within  the  discretion  of  the  court  below,  and  not  reviewable  here. 
The  question,  therefore,  is,  whether  it  tended  in  any  degree  to  show 
that  the  burning  of  the  bridge,  and  the  consequent  destruction  of 
the  plaintiflF's  property,  were  caused  by  any  of  the  defendant's  loco- 
motives. The  question  has  often  been  considered  by  the  courts  in 
this  country  and  in  England;  and  such  evidence  has,  we  think  been 
generally  held  admissible,  as  tending  to  prove  the  possibility,  and 
consequent  probability,  that  some  locomotive  caused  the  fire,  and  as 
tending  to  show  a  negligent  habit  of  the  officers  and  agents  of  the 
railroad  company.  Piggott  v.  R.  R.  Co.,  3  M.  G.  &  S.  229 ;  Sheldon  v. 
R.  R.  Co.,  14  N.  Y.  218;  Field  v.  R.  R.  Co.,  32  id.  339;  Webb  v.  R.  R. 
Co.,  49  id.  420 ;  Cleveland  v.  R.  R.  Co.,  42  Vt.  449 ;  R.  R.  Co.  v.  Wil- 
liams, 42  111.  358 ;  Smith  v.  R.  R.  Co.,  10  R.  G.  22 ;  Longabaugh  v.  R.  R. 
Co.,  4  Nev.  811.  There  are  it  is  true,  some  cases  that  seem  to  assert 
the  opposite  rule.  It  is,  of  course,  indirect  evidence,  if  it  be  evidence 
at  all.  In  this  case  it  was  proved  that  engines  run  by  the  defendant 
had  crossed  the  bridge  not  long  before  it  took  fire.  The  particular 
engines  were  not  identified ;  but  their  crossing  raised  at  least  some 
probability,  in  the  absence  of  proof  of  any  other  known  cause,  that 
they  caused  the  fire ;  and  it  seems  to  us,  that,  under  the  circumstances, 
this  probability  was  strengthened  by  the  fact  that  some  engines  of  the 
same  defendant,  at  other  times  during  the  same  season,  had  scattered 
fire  during  their  passage.  We  cannot,  therefore,  sustain  this  assign- 
ment. 

The  judgment  is,  therefore,  affirmed. 


150  Cases  on  Evidence 

MILLER  V.  PENDLETON. 
74  Mass.  547.    (1857) 

Action  of  tort  against  a  ferryman  on  the  Connecticut  River,  for 
the  loss  of  the  plaintiff's  horse  and  wagon  by  the  negligence  of  the 
defendant's  servants  while  crossing  the  ferry. 

At  the  trial  in  the  Court  of  Common  Pleas  in  Hampden,  before 
Bishop,  ].,  the  plaintiff  introduced  evidence  tending  to  show  that 
there  was  a  chain  at  the  forward  end  of  the  boat,  which,  if  it  had 
been  fastened  up,  would  have  prevented  the  horse  from  going  over^ 
board.  The  defendant  offered  evidence,  which  was  admitted  without 
objection,  that  his  custom  was  to  have  the  chain  put  up  when  pas- 
sengers requested  it  and  not  otherwise,  and  that  the  person  in  charge 
of  the  plaintiff's  horse  and  wagon  did  not  request  it.  He  also  offered 
to  prove  that  it  was  customary,  at  other  ferries  on  the  Connecticut 
River,  to  have  a  chain,  and  manage  it  in  a  similar  way.  But  this  evi- 
dence was  objected  to,  and  excluded. 

By  the  Court.  The  evidence  of  custom  was  rightly  rejected, 
for  several  reasons.  It  did  not  tend  to  prove  a  general  usage,  or 
to  prove  that  the  defendant's  custom  was  right  in  this  particular 
case.  The  usage  sought  to  be  proved  would  not  be  a  good  usage  if 
it  prevailed;  it  would  make  the  safety  of  the  passenger  depend  upon 
his  own  conduct,  and  not  on  the  care  and  vigilance  of  the  ferryman. 
If  the  putting  up  of  the  chain  was  a  reasonable  and  proper  precaution, 
it  ought  to  be  put  up  by  the  ferryman,  without  a  request;  if  it  was 
not,  a  request  would  not  make  it  so. 

Exceptions  overruled. 


SHELDON  V.  THE  HUDSON  RIVER  R.  R.  CO. 

J4  N.  Y.  218.    (1856) 

This  action  was  to  recover  the  value  of  a  building  called  the  mill- 
house,  and  its  contents,  which  stood  upon  the  plaintiff's  premises 
in  Greenburgh,  Westchester  county,  about  sixty-seven  feet  from  the 
track  of  the  defendant's  railroad.  The  complaint  alleged  that  in 
February,  1852,  the  defendants  so  carelessly  and  unskill  fully  ran 
and  managed  a  locomotive  steam  engine,  which  was  imperfectly,  un- 


Reiv^vancy  and  Materiality  151 

slcillfuUy  and  negligently  constructed,  over  their  road,  that  sparks 
and  coals  of  fire  escaped  from  the  engine  and  communicated  fire  to 
the  building  which,  with  all  its  contents,  was  consumed.  The  an- 
swer denied  the  complaint.  The  cause  was  tried  before  Justice  S. 
B.  Strong  and  a  jury  at  the  Westchester  County  Circuit  Court,  and 
the  plaintiff  was  non-suited.  The  plaintiff  made  a  bill  of  exceptions, 
and  on  appeal  the  judgment  was  affirmed  at  a  general  term  in  the 
second  district.  The  plaintiff  appealed  to  this  court.  The  only  ques- 
tion decided  by  this  court  was  an  exception  to  the  exclusion  of  evi- 
dence offered  by  the  plaintiff.  This  question  is  stated  in  the  opinion, 
by  Denio,  C.  J. 

Denio,  C.  J.  The  plaintiff  owned  and  possessed  a  building  used 
as  a  storehouse,  in  Greenburgh,  Westchester  county,  standing  on 
the  easterly  side  of  the  defendants'  road,  and  about  sixty-seven  and 
one-half  feet  from  the  track.  It  was  in  the  charge  of  two  of  the 
plaintiff's  servants.  The  outer  doors  were  kept  locked,  and  no  fire 
was  in  it.  On  the  7th  of  February,  1852,  it  took  fire  and  was  con- 
sumed. It  was  proved  that  about  twenty-five  minutes  before  the  fire 
was  discovered,  a  train  of  cars  of  the  defendants  drawn  by  a  loco- 
motive engine  called  the  Oneida,  passed  the  place.  On  the  first  floor 
of  the  building  there  was  a  parcel  of  shavings  and  a  quantity  of 
lumber,  and  some  of  the  glass  in  the  windows  of  that  story  had  been 
broken.  As  I  understand  the  testimony,  the  place  where  the  fire  was 
first  seen  was  on  this  floor,  and  not  far  from  one  of  the  windows. 
Having  proved  these  facts,  and  that  the  day  on  which  the  fire  took 
place  was  windy,  tl|e  direction  of  the  wind  being  towards  the  building, 
and  the  persons  in  charge  having  sworn  that  no  person,  to  their 
knowledge,  had  been  in  it  during  that  day,  the  plaintiff  proposed  to 
prove,  by  a  witness  who  lived  close  to  the  railroad  and  about  one- 
fourth  of  a  mile  from  the  building,  that  shortly  before  it  was  burned 
he  had  seen  sparks  and  fire  thrown  from  the  engines  used  by  the 
defendants  in  running  their  trains,  through  the  witness'  premises,  a 
greater  distance  than  this  building  stood  from  the  track  of  the  rail- 
road, and  that  he  had  picked  up  from  the  track  after  the  passage 
of  the  trains,  lighted  coals  more  than  two  inches  in  length.  The  evi- 
dence was  objected  to  by  the  defendant's  counsel  and  excluded  by 
the  court.     The  plaintiff's  counsel  excepted. 

It  is  argued  by  the  defendants'  counsel  that  the  evidence  offered 
and  rejected  was  too  remote  and  indefinite  to  have  a  just  influence 
upon  the  particular  question  in  issue  in  the  case ;  that  it  did  not  refer 
to  any  particular  engine,  and  that  it  may  be  that  the  one  which  ran 


152  Cases  on  Evidence 

past  the  plaintiflf's  premises,  just  before  the  discovery  of  the  fire,  was 
a  quite  diflferent  one  from  those  which  scattered  fire  on  occasion 
to  which  the  evidence  oflFered  would  apply.  This  argument  is  not 
without  force;  but  at  the  same  time  I  think  it  is  met  by  the  peculiar 
circumstances  of  this  case.  These  engines  run  night  and  day,  and 
with  such  speed  that  no  particular  note  can  be  taken  of  them  as  they 
pass.  Moreover,  there  is  such  a  general  resemblance  among  them, 
that  a  stranger  to  the  business  cannot  readily  distinguish  one  from 
Another.  It  will,  therefore,  generally  happen  that  when  the  prop- 
erty of  a  person  is  set  on  fire  by  an  engine,  the  owner,  though 
he  may  be  perfectly  satisfied  that  it  was  caused  by  an  engine,  and 
may  be  able  to  show  facts  sufficient  legitimately  to  establish  it,  yet 
he  may  be  utterly  ignorant  what  particular  engine,  or  even  what  par- 
ticualr  train  did  the  mischief.  It  would  be,  practically,  quite  im- 
possible by  any  inquiries  to  find  out  the  offending  engine,  for  a  large 
proportion  of  those  owned  by  the  company  are  constantly  in  rapid 
motion.  The  business  of  running  the  trains  on  a  railroad  supposes  a 
unity  of  management  and  a  general  similarity  in  the  fashion  of  the 
engines  and  the  character  of  the  operation.  I  think,  therefore,  it  is 
competent  prima  facie  evidence  for  a  person  seeking  to  establish 
the  responsibility  of  the  company  for  a  burning  upon  the  track  of  the 
road,  after  refuting  every  other  probable  cause  of  the  fire,  to  show 
that,  about  the  time  when  it  happened,  the  trains  which  the  company 
was  running  past  the  location  of  the  fire  were  so  managed  in  respect 
to  the  furnaces  as  to  be  ilkely  to  set  on  fire  objects  not  more  remote 
than  the  property  burned. 

The  judgment  must  be  reversed  and  there  must  be  a  fiew  trial. 


CROCKER  V.  McGregor. 

T6  Me.  282.     (1884) 

On  exception  and  motion  to  set  aside  the  verdict,  by  the  defendant. 

LiBBEY,  J.  This  action  comes  before  this  court  on  exceptions  and 
motion.  It  is  for  an  injury  to  the  female  plaintiff,  alleged  to  have 
been  caused  by  the  fright  of  her  horse  by  steam  escaping  from  the 
defendant's  mill,  situated  on  the  margin  of  the  public  highway,  which 
the  plaintiff  alleges  was  a  public  nuisance  to  the  travel  over  the  way. 

The  exception  is  to  the  admission  of  evidence  produced  by  the 


ReivEvancy  and  Materiality  153 

plaintiff.  Witnesses  for  the  plaint! fF  were  permitted  to  testify  that 
when  travelling  by  the  mill  with  horses  well  broken  and  ordinarily 
safe,  their  horses  were  frightened  by  the  escaping  steam.  This  evi- 
dence was  limited  to  a  short  time  before  and  after  the  plaintiff's 
injury,  when  the  mill  was  in  the  same  condition  as  when  she  was  in- 
jured; and  was  admitted  for  the  sole  purpose  of  showing  the  ca- 
pacity of  the  escaping  steam  to  frighten  the  ordinary  horses.  We 
think  it  was  properly  admitted. 

The  issue  was,  whether  the  mill  as  constructed  and  used,  with 
the  steam  escaping  into  the  way,  was  a  nuisance  to  the  public 
travel.  Evidence  showing  that  it  naturally  frightened  ordinary  horses 
when  being  driven  by  it,  was  competent  to  show  its  effect  upon  the 
public  travel,  its  character  and  its  capacity  to  do  mischief.  Its  effect 
on  horses  was  not  dependent  upon  the  acts  of  men,  which  may  be 
the  result  of  incapacity  or  negligence,  but  was  caused  by  action  of 
the  inanimate  thing  upon  an  animal  acting  from  instinct.  It  was 
not  to  show  that  other  parties  were  injured  at  the  same  place  by  the 
same  cause,  and  is,  therefore,  distinguishable  from  cases  against 
towns  for  injury  from  defects  in  a  highway,  in  which  this  court 
has  held  that  evidence  of  accidents  to  others  at  the  same  place  is 
inadmissible,  because  it  raised  too  many  collateral  issues.  Here  the 
only  issue  is  the  effect  to  the  sight  and  sound  of  the  steam  upon  ordi- 
nary horses,  as  tending  to  show  that  travel  over  the  way  was  thereby 
rendered  dangerous.  Hill  v.  P.  &  R.  Railroad  Co.,  55  Me.  439;  Bur- 
bank  v.  Bethel  Steam  Mill  Co.,  75  Me.  373.  We  think  the  compe- 
tendency  of  the  evidence  rests  upon  the  same  principle  as  evidence  in 
actions  against  railroad  corporations  for  damage  by  fire,  alleged  to 
have  been  set  by  coals  or  sparks  from  a  passing  locomotive,  that 
the  same  locomotive,  or  others  similarly  constructed  and  used,  have 
emitted  sparks  and  coals,  and  set  fire  at  other  places  and  on  other 
occasions.  It  tends  to  show  the  capacity  of  the  inanimate  thing  to 
do  the  mischief  complained  of.     Grand  Trunk  R.  Co.  v.  Richardson, 

91  u.  s.  454. 

Exceptions  and  motion  overruled. 

PEnrERS,  C.  J.,  Walton,  Daneorth  and  Virgin,  JJ.,  concurred. 


154  Cases  on  Evidence 

LORING  V.  WORCESTER  &  NASH  R.  R.  CO. 
131  Mass.  46Q.     (1881) 

Tort  for  the  destruction  of  the  plaintiff's  property  at  Sterling 
Junction,  by  fire  alleged  to  have  been  communicated  from  a  locomotive 
engine  of  the  defendant,  on  Saturday,  June  29,  1878.  At  the  trial 
in  the  Superior  Court,  before  Aldrich,  J.,  the  jury  returned  a  verdict 
for  the  defendant;  and  the  plaintiff  alleged  exceptions  to  the  ex- 
clusion of  certain  evidence,  the  nature  of  which  appears  in  the  opinion. 

Morton,  J.  The  defendant  introduced  evidence  that  the  engine, 
which  the  plaintiff  contended  communicated  fire  to  his  barn,  "was 
furnished  with  the  ordinary  appliances  of  a  cone  and  netting  for 
arresting  sparks,  which  netting  was  examined  on  arrival  at  Wor- 
cester on  the  return  trip  the  following  Monday  and  found  to  be 
whole  and  in  good  condition."  It  was  accompanied  by  evidence  that 
the  engine  on  the  return  trip  was  in  the  same  condition  and  used 
the  same  kind  of  fuel  as  on  the  outward  trip  on  Saturday.  The 
obvious  purpose  of  the  evidence  was  to  induce  the  jury  to  believe 
that  the  engine  on  the  trip  on  Saturday  could  not  emit  sparks  which 
would  communicate  fire  to  the  plaintiff's  barn. 

We  are  of  opinion  that  it  was  competent  for  the  plaintiff  to  show 
that  the  engine  on  the  return  trip  emitted  sparks  which  set  fire  to 
property  in  the  same  neighborhood.  Such  evidence  tended  to  show 
that  the  spark-arrester,  testified  to  by  the  defendant's  witnesses,  was 
either  faulty  in  construction  or  out  of  repair,  and  thus  to  rebut  the 
presumption  which  the  jury  might  draw  from  the  defendant's  evi- 
dence, which  it  tended  to  contradict  and  control.  Ross  v.  Boston  & 
Worcester  Railroad,  6  Allen,  87. 

Exceptions  sustained. 


HEWITT  V.  TAUNTON  STREET  RY.  CO. 
i6y  Mass.  483.     (i8g7) 

Tort,  by  the  administrator  of  the  estate  of  Frederick  Hewitt,  for 
causing  his  death. 

At  the  trial  in  the  Superior  Court,  before  Lilley,  J.,  it  appeared 
that  the  plaintiff's  intestate  was  a  child  three  years  and  eight  months 


REI.EVANCY   AND   MaTERIAI^ITY  1 55 

old,  and  lived  with  his  parents  on  Bay  Street  in  Taunton,  which  was 
one  of  the  main  thoroughfares  in  the  city,  and  upon  which  the  defend- 
ant's electric  railway  ran;  that,  on  the  day  of  the  accident,  the  child's 
father  came  home  about  five  o'clock  in  the  afternoon  and  went  di- 
rectly into  the  house,  leaving  the  child  alone  in  the  yard,  where  he 
was  then  playing;  that  the  yard  adjoined  the  sidewalk,  having  a  fence 
with  gates  opening  thereon;  that  the  child's  mother  was  also  in  the 
house,  and  both  parents  remained  there,  attending  to  domestic  duties 
and  taking  no  notice  of  the  child  for  about  fifteen  minutes;  and 
that  the  child  was  seen  to  run  across  the  street  with  a  companion, 
and  then  start  to  return  running  diagonally  across  the  street  with  his 
back  turned  towards  an  approaching  car,  which  struck  and  killed 
him. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions  to  the  refusal  to  rule  that,  "as  matter  of  law,  the 
parents  of  the  child  were  not  exercising  due  care,  and  so  the  plaintiff 
could  not  recover,"  and  also  to  the  admission  of  certain  evidence,  the 
nature  of  which  appears  in  the  opinion. 

Alle;n,  J.  The  two  grounds  upon  which  the  plaintiff  relied  were, 
that  Carroll  was  an  incompetent  man  in  the  position  which  he  occu- 
pied, and  that  there  was  gross  negligence  on  the  part  of  Carroll  and 
Smith  in  the  operation  of  the  car.  Carroll  was  a  witness  for  the 
defendant,  and  on  his  cross-examination  the  following  question  and 
answer  were  admitted,  under  exception :  Q.  Have  you  had  any  car 
to  run  since  the  accident?  A.  No  car  to  run  steady."  There  was 
also  some  evidence  respecting  Carroll's  pay.  In  respect  to  this  evi- 
dence, the  court  instructed  the  jury  as  follows :  "That  was  admitted 
as  bearing  upon  the  question  merely  of  the  light  in  which  Carroll 
was  viewed  by  the  defendant  company  itself."  The  admission  of  this 
evidence  for  the  purpose  stated  presents  the  question  whether  the 
virtual  discharge  of  a  servant  from  his  regular  employment  after  an 
accident  can  be  proved,  in  a  case  like  this,  as  an  implied  admission  by 
his  employer  that  he  had  been  careless,  or  was  incompetent.  The 
plaintiff  contends  that  this  evidence  bore  directly  on  the  defendant's 
negligence  or  carelessness  in  employing  such  a  person. 

It  has  heretofore  been  held  that  taking  additional  precautions,  after 
an  accident,  to  prevent  other  accidents,  is  not  admissible  in  evidence 
in  a  case  like  this  for  the  purpose  of  showing  negligence.  Shinners 
V.  Proprietors  of  Locks  &  Canals,  154  Mass.  168.  Downey  v.  Sawyer, 
157  Mass.  418.  Columbia  &  Puget  Sound  R.  v.  Hawthorne,  144  U.  S. 
202.     The  same  reasons  which  led  to  those  decisions  apply  in  the 


156  Cases  on  Evidence 

present  case.  To  hold  otherwise  would  tend  to  discourage  the  adop- 
tion of  additional  safeguards  by  improving  the  quality  and  raising 
the  standard  of  the  service.  The  admission  of  this  evidence  for  the 
purpose  stated  may  have  prejudiced  the  defendants  case  in  the  mind 
of  the  jury. 

Exceptions  sustained. 


CHABACTEB.! 

HARWOOD  v.  THE  PEOPLE. 

26  N.Y.  jpo.     (1863) 

DaviES,  J.  The  indictment  charged  the  plaintiff  in  error  with  keep- 
ing a  bawdy  house.  It  was  proved  that  he  kept  a  house  in  the  city 
of  Syracuse,  and  to  make  out  the  offense,  it  was  necessary  to  estab- 
lish the  character  or  kind  of  house  so  kept  by  him.  A  bawdy  house 
is  defined  to  be  a  house  of  ill-fame,  kept  for  the  resort  of  unlawful 
commerce  of  lewd  people  of  both  sexes.  (Bouv.  Law  Die,  vol.  i, 
p.  163.)  It  was  essential  therefore,  for  the  prosecution  to  establish 
the  character  of  the  house,  and  to  show  the  character  of  the  persons 
frequenting  or  occupying  it.  The  questions  put  to  the  witnesses  ob- 
jected to,  only  called  out  the  fact  that  females  were  found  in  the 
house  of  the  plaintiff  and  were  taken  from  there,  before  a  magistrate, 
and  convicted  as  prostitutes,  and  punished  as  such.  This  was  prima 
facie  evidence  of  the  character  of  the  persons  frequenting  the  plain- 
tiff's house,  Jind  was  legitimate  and  proper  evidence,  to  establish  such 
character.  Proof  that  prostitutes  were  found  frequently  at  the  plain- 
tiff's house,  and  were  notoriously  so,  were  circumstances  bearing 
directly  on  the  issue,  whether  the  plaintiff  kept  a  bawdy  house  or 
house  of  ill-fame,  and  the  jury  would  be  warranted  in  finding  as 
they  did,  from  such  circumstances  and  the  additional  one  that  con- 
victed and  notorious  prostitutes  were  frequently  arrested  there,  that 
he  kept  a  house  of  that  character.  The  materiality  of  the  inquiry  did 
not  consist  in  the  fact  that  arrests  of  such  women  were  made  in  the 
plaintiff's  house,  but  in  the  fact  that  women  of  such  character  were 
frequently  found  there,  and  permitted  there  after  their  arrest  and 
conviction  as  prostitutes.  The  inquiry  as  to  the  agency  of  the  plaintiff 
in  procuring  bail   for  them,  when  arrested  upon  such  charges,  was 


Character  157 

eminently  legitimate  as  tending  to  show  his  knowledge  of  the  char- 
acter of  the  women  occupying  and  frequenting  his  house.  A  man 
careful  of  the  reputation  of  his  house,  and  regulating  it  upon  correct 
principles,  is  not  accustomed  to  have  found  there  women  notoriously 
charged  with  the  offense  of  prostitution ;  and  for  the  purpose  of  fix- 
ing on  the  plaintiff  the  knowledge  of  the  character  of  the  inmates  of 
his  house,  and  as  their  character  and  habits  determined  the  kind  and 
character  of  the  house  he  kept,  it  was  proper  to  show  that  he  knew 
these  charges  against  them,  and  that  such  knowledge  was  evidenced 
by  his  becoming  bail  for  them  before  the  police  magistrate.  The 
time  of  making  the  arrests  was  of  no  materiality,  except  as  indicating 
the  presence  in  the  plaintiff's  house  of  women  of  the  character  his 
inmates  were  proved  to  be,  and  the  time  when  they  were  thus  found 
to  be  there  was  a  material  inquiry;  and  in  this  aspect,  the  questions 
as  to  the  time  of  making  the  arrests  and  when  last  made,  were 
properly  allowed  to  be  put. 

In  the  view  we  take  of  this  case,  and  the  facts  necessary  to  be 
established  by  the  prosecution,  to  warrant  the  jury  in  convicting  the 
plaintiff,  the  judge  correctly  told  the  jury  that  the  frequent  arrests 
at  the  plaintiff's  house  of  females,  theretofore  convicted  as  pros- 
titutes, was  a  circumstance  proper  to  be  taken  into  consideration  by 
the  jury  in  making  up  their  verdict.  It  was  not  the  fact  that  such 
females  were  frequently  arrested  in  the  plaintiff's  house,  which  gave 
point  and  significance  to  this  part  of  the  charge,  but  the  fact  that 
females  theretofore  convicted  as  prostitutes  were  frequently  found 
in  the  plaintiff's  house.  The  fact  of  such  conviction  stamped  them 
as  prostitutes,  and  its  notoriety,  and  the  circumstance  of  such  frequent 
arrests  must  have  brought  home  to  the  plaintiff  knowledge  of  their 
character.  The  character  of  the  inmates  of  the  plaintiff's  house  deter- 
mined the  kind  of  house  he  kept,  and  if  it  was  frequented  by  pros- 
titutes, notoriously  so,  and  they  were  frequently  arrested  there  by  the 
poHce  officers,  the  jury  were  authorized  to  find  it  was  a  bawdy  house 
or  house  of  ill-fame. 

We  see  no  error  in  the  admission  of  the  evidence  objected  to,  or 

in  that  part  of  the  charge  excepted  to,  and  think  the  judgment  should 

be  affirmed. 

Judgment  affirmed. 

iHughes  on  Evidence,  p.  39. 


158  Cases  on  Evidence 

WINN  V.  PECKHAM. 
42  Wis.  493.    (1877) 

Action  to  recover  damages  for  an  alleged  malicious  prosecution 
of  the  plaintiff,  by  the  defendant,  for  perjury.  The  testimony  on 
the  trial  tended  to  show  the  facts. 

Lyon,  J.  Evidence  was  received  of  the  pecuniary  condition  of  the 
defendant.  This  is  claimed  to  be  error.  The  action  is  one  in  which 
the  jury  might  properly  award  exemplary  damages  in  their  discretion, 
and  it  is  settled  in  this  state  that  in  such  an  action  testimony  of  the 
pecuniary  circumstances  of  the  defendant  is  competent. 

By  the  Court.    Judgment  affirmed. 


HOUGHTALING  v.   KELDERHOUSE. 
2  Barb.  (N.  Y.)  149.     (1848) 

This  was  an  action  of  slander,  for  charging  the  plaintiff  with 
having  killed  the  defendant's  horses  by  administering  poison  to  them. 
The  defendant  pleaded  not  guilty,  and  gave  notice  of  justification. 
The  cause  came  on  for  trial  at  the  Albany  Circuit  in  June  1845. 
On  the  trial  the  plaintiff  proved  the  speaking  of  the  words  as  laid  in 
the  declaration.  The  defendant  then  proved  that  his  horses  had  been 
poisoned,  and  died  in  consequence  thereof  on  the  night  of  November 
6,  1844.  The  defendant  also  proved,  that,  in  July,  previous  to  the 
poisoning,  there  had  been  a  difficulty  between  the  parties,  on  the  oc- 
casion of  the  settlement  of  a  note  the  plaintiff  held  against  the 
defendant,  when  the  plaintiff  used  harsh  language  and  exhibited  some 
ill  feeling  against  the  defendant.  The  defendant  also  proved  facts 
and  circumstance?  tending  to  show  that  the  plaintiff  was  guilty  of 
having  poisoned  the  horses.  After  examining  a  large  number  of  wit- 
nesses in  support  of  such  justification,  he 'rested  his  defense. 

The  plaintiff  then  offered  to  prove  that  after  the  settlement  of 
the  note,  and  prior  to  the  poisoning,  the  plaintiff  told  the  witness, 
in  a  different  conversation  and  in  the  defendant's  absence,  that  he 
was  satisfied  with  the  said  settlement.  This  evidence  was  objected 
to  by  the  defendants  counsel,  and  excluded  by  the  circuit  judge;  to 
which  decision  the  plaintiff's  counsel  excepted. 


Character  159 

After  the  plaintiff's  counsel  had  called  witnesses  and  introduced 
evidence  in  reply  to  the  defendant's  testimony,  he  offered  to  prove 
that  the  plaintiff's  general  character  was  good.  The  defendant's 
counsel  objecting,  this  evidence  was  also  excluded  by  the  judge,  and 
his  decision  excepted  to  by  the  plaintiff. 

The  jury  gave  a  verdict  in  favor  of  the  defendant,  and  the  plain- 
tiff moved  for  a  new  trial  on  a  bill  of  exceptions. 

By  the  Court,  Parker,  J.  It  cannot  be  necessary  to  refer  to 
cases  to  show  that  the  judge  was  right  in  not  permitting  the  plaintiff 
to  prove  his  own  declarations,  made  in  the  absence  of  the  defendant, 
and  in  a  conversation  different  from  that  previously  proved  on  the 
other  side.  The  general  and  well  settled  rule  forbids  a  party  making 
his  declarations  evidence  in  his  own  favor  was  clearly  applicable, 
nothing  had  been  proved  on  the  part  of  the  defendant  to  bring  the 
evidence  offered  within  any  exception  to  that  rule. 

But  the  principal  point  made  by  the  plaintiff,  in  moving  for  a  new 
trial,  is  that  the  circuit  judge  refused  to  receive  evidence  that  the 
plaintiff's  general  character  was  good,  which  evidence  was  offered 
by  the  plaintiff  after  testimony  had  been  introduced  on  the  part  of 
the  defendant,  tending  to  show  that  the  plaintiff  had  poisoned  the 
horses  of  the  defendant. 

The  rule  as  laid  down  by  the  chancellor  in  Townsend  v.  Graves 
(3  Paige,  455,)  is  broad  enough  to  admit  the  evidence  in  question. 
The  chancellor  there  says,  "It  is  a  general  rule  of  evidence  that  if 
a  party  is  charged  with  a  crime  or  any  other  act  involving  moral  tur- 
pitude, which  is  endeavored  to  be  fastened  upon  him  by  circumstantial 
evidence,  or  by  the  testimony  of  witnesses  of  doubtful  credit,  he  may 
introduce  proof  of  his  former  character  for  honesty  and  integrity, 
to  rebut  the  presumption  of  guilt  arising  from  such  evidence,  which 
it  may  be  impossible  for  him  to  contradict  or  explain."  And  the 
chancellor  proceeds  to  say,  without  dissent,  that  such  doctrine  has 
been  held  applicable  to  a  defendant  in  a  civil  suit,  in  Ruan  v.  Perry 
(3  Caines,  120.)  The  case  last  cited  went  that  entire  length,  and 
in  delivering  the  opinion  of  the  court  in  that  case,  Tompkins,  justice, 
says :  "The  evidence  of  character  was  also  in  my  opinion  properly 
admitted.  In  actions  of  tort,  and  especially  charging  a  defendant  with 
gross  depravity  and  fraud,  upon  circumstances  merely,  as  was  the 
case  here,  evidence  of  uniform  integrity  and  good  character  is  often- 
times the  only  testimony  which  a  defendant  can  oppose  to  suspicious 
circumstances."  The  same  rule  was  held  in  Harding  v.  Brooks  (5 
Pick.  244.) 


i6o  Cases  on  Evidence 

But  the  case  of  Ruan  v.  Perry  has  been  distinctly  and  repeatedly 
overruled  by  the  Supreme  Court  of  this  state,  and  the  English  rule 
adopted,  as  laid  down  in  The  Attorney  General  v.  Bowman  (2  Bos. 
&  Pull.  532,  note  a.)  In  Fowler  v.  The  ^tna  Fire  Ins.  Co.  (6  Cowen, 
673)  in  commenting  on  the  case  of  Ruan  v.  Perry,  Savage,  Ch.  J. 
says :  "If  such  evidence  is  proper,  then  a  person  may  screen  hihiself 
from  the  punishment  due  to  fraudulent  conduct  till  his  character 
becomes  bad.  Such  a  rule  of  evidence  would  be  extremely  dangerous. 
Every  man  must  be  answerable  for  every  improper  act,  and  the 
character  of  every  transaction  must  be  ascertained  by  its  own  cir- 
cumstances, and  not  by  the  character  of  the  parties."  In  the  later 
case  of  Gough  v.  St.  John  (16  Wend.  646,)  this  question  is  fully 
examined  by  Cowen,  Justice;  who  says  the  case  of  Ruan  v.  Perry  is 
virtually  exploded  by  the  late  authorities,  and  that  the  practice  of 
receiving  such  evidence  has  not  for  many  years  been  followed  at 
the  circuit,  to  any  considerable  extent.  Opposed  to  Ruan  v.  Perry, 
are  also  the  cases  of  Woodruff  v.  Whittlesey  (Kirby,  60) ;  Ander- 
son V.  Long  (10  Serg.  &  Rawle,  55)  ;  Nash  v.  Gilkeson  (5  Id.  352)  ; 
Potter  V.  Webb  (6  Greenl,  14) ;  and  Humphrey  v.  Humphrey  (7 
Conn.  Reports  116).  And  Justice  Cowen  cites  with  approbation  the 
following  extract  from  the  opinion  of  Daggett,  justice,  in  the  case 
last  referred  to.  "Causes  charging  cruelty,  gross  fraud,  and  even 
forgery,  are  often  agitated  in  suits  by  individuals;  and  the  result 
not  un frequently  affects  the  property  and  reputation  of  the  party 
deeply;  yet  no  individual  has  been  permitted  to  attempt  to  repel  th-e 
proof  by  showing  a  good  reputation."  And  in  the  opinion  of  Justice 
Cowen  on  this  point.  Chief  Justice  Nelson  and  Justice  Bronson  con- 
curred. 

I  cannot,  therefore,  hesitate  to  regard  the  rule  as  now  well  settled 
in  this  state,  that  such  evidence  is  inadmissible  in  a  civil  suit.  At  the 
time  the  case  of  Townsend  v.  Graves  was  decided,  in  1832,  it  had 
probably  escaped  the  notice  of  the  chancellor  that  the  case  of  Ruan 
V.  Perry  had  been  overruled  by  the  decision  in  6  Cowen,  made  in 
1827.  And  the  still  later  case  of  Gough  v.  St.  John  seems  to  have 
put  the  question  at  rest  in  this  state.  Indeed  there  appears  to  be 
a  good  reason  for  the  distinction  that  is  taken.  In  a  criminal  prose- 
cution, it  is  safest,  in  mercy  to  the  accused,  that  he  should  avail  him- 
self of  his  previous  good  character  to  save  himself  from  punishment 
in  a  doubtful  case;  but  in  a  civil  suit,  where  the  personal  rights  of 
opposite  parties  are  to  be  weighed  in  a  nicely  adjusted  balance,  no 


Character  i6i 

proof,  except  that  relating  to  the  facts  in  controversy,  should  be  ad- 
mitted to  turn  the  scale. 

The  admission  of  such  evidence  in  a  criminal  case,  is  but  an 
exception  to  what  must  be  regarded  a  general  rule,  resting  upon 
principle.  If  the  plaintiff  might  prove  his  good  character  to  resist 
the  conclusion  of  his  guilt,  then  it  would  have  been  equally  proper 
for  the  defendant,  in  the  first  instance  to  introduce  evidence  of  the 
bad  character  of  the  plaintiff,  for  the  purpose  of  sustaining  his  jus- 
tification. If  character  can  be  legitimately  examined,  with  a  view  to 
ascertain  the  fact  of  guilt,  neither  party  could  be  prevented  giving 
evidence  in  regard  to  it.  The  absurdity  of  such  a  practice  is,  we 
think,  apparent. 

New  trial  denied. 


COMMONWEALTH  v.  CHURCHILL. 
52  Mass.  538.     (1846) 

The  defendant  was  indicted,  on  the  Rev.  Sts.  c.  130,  sec.  4,  for 
lewdly  and  lasciviously  associating  and  cohabiting  with  Lavinia  Cash. 
At  the  trial  in  the  Court  of  Common  Pleas,  before  Cushing,  J.  the 
said  Lavinia  testified  in  behalf  of  the  Commonwealth,  and  the  de- 
fendant, in  order  to  impeach  her  testimony,  offered  to  prove  that  she 
then  was,  and  for  ten  years  next  preciding  had  been,  a  common  pros- 
titute, and  obtained  her  living,  in  whole  or  in  part,  by  the  prostitution 
of  her  person  for  hire  and  gain.  The  judge  ruled  that  the  offered 
proof  was  inadmissible  and  excluded  it.  The  jury  found  the  defend- 
ant guilty  and  he  alleged  exceptions. 

Shaw,  C.  J.  This  case  presents  the  direct  question,  whether  evi- 
dence is  admissible  to  impeach  the  credibility  of  a  female  witness, 
which  tends  to  show  that  she  is,  and  for  some  time  has  been  a  com- 
mon prostitute,  and  has  obtained  her  living  in  whole  or  in  part,  by  the 
prostitution  of  her  person  for  gain. 

The  only  reported  case,  in  which  it  has  been  held  that  such  evi- 
dence is  admissible,  is  Commonwealth  v.  Murphy,  14  Mass.  387.  It 
was  a  decision  made  in  the  course  of  a  capital  trial,  and  probably 
without  much  time  for  deliberation,  or  reference  to  authorities.  It 
was  followed,  we  think,  with  some  doubt  and  hesitation,  in  a  few 
other   cases   not   reported.     It   is   referred  to   in   Commonwealth   v. 


i62  Cases  on  Evidence 

Moore,  3  Pick.  196,  and  spoken  of  as  a  relaxation  of  the  general 
rule,  which  confines  the  impeaching  testimony  to  the  general  char- 
acter of  the  witness  for  veracity.  We  consider  it  as  a  deviation  from 
the  established  rule  of  the  common  law  on  the  subject.  It  has  been 
regarded,  by  the  judges  of  this  Commonwealth,  with  disapprobation, 
and  has  not  been  adopted  by  the  courts  of  other  States.  See  Jackson 
V.  Lewis,  13  Johns.  504.  Bakeman  v.  Rose,  14  Wend.  105,  and  18 
Wend.  146.  Morse  v.  Pineo,  4  Verm.  281.  The  State  v.  Smith,  7 
Verm.  141.  Spears  v.  Forrest,  15  Verm.  435.  It  is  not  required 
by  any  strong  considerations  of  fitness  or  expediency,  and  cannot 
be  regarded  as  having  acquired  the  force  of  a  settled  rule  of  law. 
We  are  therefore  of  opinion  that  the  decision  of  the  judge,  in  reject- 
ing the  evidence  tendered,  was  correct. 

Exceptions  overruled. 


GAITHER  V.  BLOWERS. 
ij  Md.  336.     (1857) 


Le  Grand,  C.  J.  This  is  an  action  of  assault  and  battery, 
brought  by  the  appellee  against  the  appellant.  The  pleas  were  "not 
guilty  and  son  assault  demesne;"  the  replication  to  the  second  plea 
wa^  "deinjuria  et  cetera." 

The  second  exception  of  the  appellant,  grows  out  of  the  court's 
allowing  the  plaintiff  to  give  evidence,  with  the  view  of  increasing 
his  damages,  that  he  was  a  laboring  man,  and  had  a  wife  and  children 
to  support. 

The  general  rule  is,  that  it  is  not  necessary  to  state  specially  any 
matters  which  are  the  legal  and  natural  consequences  of  the  battery 
nor  are  the  jury  confined  to  the  mere  corporal  injury  which  the 
plaintiff  has  sustained ;  but  they  are  at  liberty  to  consider  the  malice 
of  the  defendant,  the  insulting  character  of  his  conduct,  the  rank  in 
life  of  the  several  parties,  and  all  the  circumstances  of  the  outrage, 
and  thereupon  to  award  such  exemplary  damages  as  the  circumstances 
may  in  their  judgment  require.  2  Greenlf.  on  Ev.,  sec,  89.  In 
McNamara  v.  King,  2  Gilman,  436,  the  court  say,  that  "in  actions  of 
this  kind,  the  condition  in  life,  the  circumstances  of  the  parties,  are 
peculiarly  the  proper  subjects  for  the  consideration  of  the  jury,  in 
estimating  the  damages;  their  pecuniary  circumstances  may  be  in- 


Character  163 

quired  into.  It  may  readily  be  supposed  that  the  consequences  of  a 
severe  personal  injury  would  be  more  disastrous  to  a  person  destitute 
of  pecuniary  resources,  and  dependent  wholly  on  his  manual  exer- 
tions for  the  support  of  himself  and  family,  than  to  an  individual 
differently  situated  in  life.  The  effect  of  the  injury  might  be  to 
deprive  him  and  his  family  of  the  comforts  and  necessaries  of  life. 
It  is  proper  that  the  jury  should  be  influenced  by  the  pecuniary 
resources  of  the  defendant.  The  more  affluent,  the  more  able  he  is 
to  remunerate  the  party  he  has  wantonly  injured.  In  this  class  of 
cases,  the  jury  may  give  exemplary  damages,  not  only  to  compensate 
the  plaintiff,  but  to  punish  the  defendant.  The  standard  of  dam- 
ages is  not  a  fixed  one,  applicable  to  all  cases,  but  is  to  be  regulated 
by  the  circumstances  of  each  particular  case."  This  is  good  sense, 
and  is  sustained  by  the  decisions  in  most  states.  An  injury  done  to 
a  person  not  dependent  on  manual  labor  for  the  support  of  himself 
and  family,  is  in  nowise  as  great  as  one  to  a  person  so  situated.  We 
are  of  opinion  the  court  properly  overruled  the  objection. 

Judgment  affirmed. 


O'BRIEN  V.  FRASIER. 
4r  N.  J.  L.  349-     (1885) 


The  suit  was  for  a  malicious  prosecution.  The  declaration  set 
forth,  in  the  usual  form,  the  good  character  of  the  plaintiff,  and 
that  the  defendant,  intending  to  injure  her  in  her  fame  and  credit, 
without  any  reasonable  cause  made  a  charge  of  perjury  against  her, 
and  so  caused  her  arrest  and  imprisonment  in  the  county  jail,  until 
she  was  discharged  on  account  of  no  indictment  having  been  found 
against  her  by  the  grand  jury;  that  by  means  of  these  facts  she  was 
greatly  injured  in  her  said  credit  and  reputation,  and  brought  into 
public  scandal,  infamy  and  disgrace,  &c.  The  plea  was  the  general 
issue. 

The  opinion  of  the  court  was  delivered  by 

Beasi^Ey,  Chief  Justice.  The  basis  of  the  suit  was  the  arrest  and 
imprisonment  of  the  plaintiff  on  an  affidavit  made  by  the  defendant, 
containing  a  charge  of  perjury,  and  which  charge,  it  was  asserted  had 
been   made    falsely,   maliciously   and   without   probable   cause. 

The  second  objection  urged  against  the  proceedings  at  the  trial 


164  Cases  on  Evidence 

also  arises  from  the  exclusion  of  proofs  offered  by  the  defendant. 

The  defendant,  desirous,  apparently,  to  disparage  the  general  repu- 
tation of  the  plaintiff  in  point  of  morals,  asked  of  a  witness  the  fol- 
lowing question :  "Do  you  know  the  reputation  of  Mrs.  Frasier,  in 
the  city  of  Paterson?"  This  interrogatory  in  the  form  stated  was 
overruled,  the  court  directing  the  counsel  to  make  the  inquiry  more 
specific.  The  following  interrogatories  were  then  propounded  and 
were  successively  overruled,  to  wit:  "Are  you  acquainted  with  the 
general  reputation  among  her  neighbors  and  acquaintances,  of  the 
plaintiff?"  "Do  you  know  whether  the  plaintiff  has  been  charged 
with  crime  prior  to  the  complaint  which  Mr.  O'Brien  made  against 
her  ?"  "Are  you  acquainted  with  the  general  reputation  which  the 
plaintiff  had  amongst  her  friends  and  neighbors  prior  to  the  time  that 
Mr.  O'Brien  made  his  charge  against  her?"  "Do  you  know  whether, 
prior  to  the  charge  that  Mr.  O'Brien  made  against  her,  the  defendant 
had  obtained  and  acquired  the  good  opinion  and  credit  of  her  neigh- 
bors?" "Are  you  acquainted  with  the  reputation  which  Mrs.  Frasier 
had  prior  to  Mr.  O'Brien's  charge  against  her  for  virtue?" 

With  respect  to  these  inquiries  two  topics  are  discussed  in  the 
briefs  of  counsel,  first,  whether  the  general  character  of  the  plaintiff 
in  this  action  was  open  to  attack,  and,  second,  this  being  answered 
in  the  affirmative,  whether  the  interrogatories,  or  any  of  them  which 
were  addressed  to  the  witness,  were  in  due  form. 

Touching  the  first  subject,  it  is  conceived  that  when  a  plaintiff  in 
a  suit  for  malicious  prosecution  founds  his  action  in  part  on  an 
injury  done  to  his  character  by  such  prosecution,  the  legal  rule  is 
quite  settled  that  he  thereby  puts  his  general  character  in  issue.  As 
long  ago  as  the  case  of  Savile  v.  Roberts,  reported  in  i  Ld.  Raym. 
374,  Lord  Holt,  in  defining  the  damages  which  will  support  a  suit  of 
this  character,  states  as  his  first  class  those  instances  where  the 
only  damage  consists  in  the  "injury  done  to  a  man's  fame,  as  if  the 
matter  whereof  he  be  accused  be  scandalous,"  It  would  seem  to  fol- 
low therefore,  that  whenever  the  action  is  used  as  a  means  of  repara- 
tion for  an  injury,  in  whole  or  in  part,  done  to  his  character,  the 
plaintiff  in  such  procedure  must  stand  in  precisely  the  same  attitude 
that  the  actor  in  an  action  for  libel  or  slander  assumes,  and  in  the 
latter  class  of  cases,  it  has  been  adjudged  in  this  court,  that  the 
general  bad  character  of  the  plaintiff  at  the  time  of  the  alleged 
grievance  is  admissible  on  the  part  of  the  defense  in  mitigation  of 
damages.  The  case  indicated  is  thaf  of  Sayre  v.  Sayre,  i  Dutcher 
235,  in  which  Chief  Justice  Green  reviews  the  English  and  American 


Character  165 

decisions  on  this  subject,  and  finally  declares  the  class  of  evidence  in 
question  is  admissible,  in  mitigation  of  damages,  on  the  broad  ground 
"that  it  cannot  be  just  that  a  man  of  infamous  character  should,  for 
the  same  libelous  matter,  be  entitled  to  equal  damages  with  the  man 
of  unblemished  reputation."  It  is  also  to  be  noted,  in  this  connec- 
tion, that  in  his  discussion  of  this  subject  the  accurate  jurist  just 
mentioned,  evidently  considered  the  action  for  malicious  prosecution 
based  upon  an  injury  to  character,  as  in  pari  materia  with  the  action 
for  libel  or  slander,  and  refers  to  both  procedures,  throughout  his 
opinion,  as  resting  on  the  same  general  principle.  And  indeed  it  does 
not  seem  to  be  deniable  that  a  malicious  prosecution  for  an  indictable 
and  odious  offense  is  a  libel  to  which  is,  in  some  cases,  superadded 
illegal  imprisonment  and  the  loss  of  property,  so  that  it  would  be 
quite  abnormal  for  the  same  court  to  declare  that  in  the  actions  for 
libel  the  plaintiff's  character  is  in  issue,  but  in  actions  for  malicious 
prosecution  it  is  not  in  issue. 

And  the  decision  just  referred  to  appears  to  accord  with  the  great 
weight  of  authority,  as  will  plainly  appear  by  a  reference  to  any 
of  the  leading^  text-books  treating  of  the  subject,  i  Whart.  Ev., 
sec.  54;  Bacon  v.  Towne,  4  Cush.  217;  Fitzgibbon  v.  Brown,  43  Me. 
169. 

Evidence  as  to  the  bad  moral  character  of  the  plaintiff  was,  it  is 
considered,  plainly  admissible  in  mitigation  of  damages.  Whether 
such  testimony  would  have  been  proper,  if  such  issue  had  been  pre- 
sented on  the  facts  as  a  circumstance  going  to  make  up  a  reasonable 
cause  for  the  conduct  of  the  defendant,  is  a  question  not  now  sub 
judice. 

Judgment  reversed. 


ELTRINGHAM  v.  EARHARDT 
(5/  Miss.  492.     (i88p) 

Cooper,  J.  delivered  the  opinion  of  the  court. 

This  is  an  action  by  appellee  to  recover  damages  for  injuries  in- 
flicted by  appellant  by  an  assault  and  battery.  From  a  verdict  and 
judgment  for  two  hundred  dollars  the  defendant  appeals.  The  prin- 
cipal error  assigned  is  the  action  of  the  court  in  giving  the  sixth 
instruction  asked  by  the  plaintiff,  which  is  as  follows : 

"The  court  instructs  the  jury  that  if  they  find  for  plaintiff  they 


i66  Cases  on  Evidence 

have  the  right  to  take  into  consideration,  in  estimating  the  damages, 
the  pecuniary  condition  of  both  the  plaintiff  and  defendant." 

It  is  said  by  counsel  for  appellant  that  there  is  neither  principle 
nor  authority  for  instructing  a  jury  in  cases  of  this  character  to  take 
into  consideration  the  poverty  of  the  plaintiff. 

We  find  no  difficulty  in  supporting  the  charge  upon  both  principle 
and  authority.  The.  evidence  shows  that  the  plaintiff  was  a  poor 
man,  dependent  upon  his  personal  labour  for  his  support,  and  that 
by  reason  of  the  injuries  inflicted  upon  him  he  was  for  more  than  two 
weeks  unable  to  properly  perform  his  duties,  and  yet  feels  the  effect 
of  the  blows  and  kicks  administered  by  the  defendant. 

In  actions  of  this  character,  in  which  insult  and  mortification 
bear  so  large  proportion  to  the  injury  inflicted,  juries  are  not  re- 
stricted to  the  actual  pecuniary  damages  sustained.  Treating  of 
such  actions,  Greenleaf  says :  "Nor  are  the  jury  confined  to  the 
mere  corporal  injury  which  the  plaintiff  has  sustained ;  but  they  are 
at  liberty  to  consider  the  malice  of  the  defendant,  the  insulting  char- 
acter of  his  conduct,  the  rank  in  life  of  the  several  parties,  and  all  the 
circumstances  of  the  outrage,  and  thereupon  to  award  such  exem- 
plary damages  as  the  circumstances  may  in  their  judgment  require." 

We  find  no  error  in  the  proceedings.  The  appellant  may  congratu- 
late himself  upon  escaping  with  so  moderate  a  verdict.  A  very  much 
larger  one  would  have  been  supported  by  the  evidence  and  would 
have  met  our  hearty  approval. 

Affirmed. 


SOUTHERN  KAN.  RWY.  CO.  v.  ROBBINS. 
43  Kan.  145.     (1890) 

Action  brought  against  the  Railway  Company  by  Robbins,  as  admin- 
istrator of  the  estate  of  John  F.  Patterson,  deceased,  to  recover 
damages  for  the  benefit  of  his  widow  and  child.  Judgment  for  the 
l)laintiff,  at  the  October  term,  1887,  for  $5,500, 

Johnston,  J.  Errors  are  assigned  her  upon  the  rulings  of  the 
court  in  admitting  evidence. 

A  witness  was  asked,  and  over  objection  permitted  to  state,  as 
to  whether  the  deceased  was  a  careful  and  skillful  railroad  man. 
This  was  clearly  erroneous.     The  question  whether  Patterson  exer- 


Character  167 

cised  due  care  in  this  particular  instance  was  an  important  issue.  It 
was  alleged  that  he  was  guilty  of  negligence,  and  it  was  contended 
that  the  absence  of  the  handhold  on  the  top  of  the  car  was  an  obvious 
danger,  and  apparent  to  anyone,  and  that  to  ascend  a  perpendicular 
ladder  in  the  manner  in  which  he  did,  by  letting  go  his  hold  of  the 
rung  on  the  side  of  the  car  before  laying  hold  of  the  rung  on  the 
top  of  the  car,  was  negligence.  The  issue  of  his  want  of  ordinary 
care  was  before  the  jury,  and  there  was  much  testimony  submitted 
concerning  his'  conduct  at  the  time  of  the  injury.  There  were  eye- 
witnesses present,  who  at  the  trial  described  the  manner  in  which  he 
ascended  the  ladder,  and  the  care  which  he  exercised  at  the  time  the 
accident  occurred;  and  hence  there  was  no  necessity  nor  propriety 
in  admitting  the  opinion  of  an  expert  as  to  whether  he  was  generally 
a  careful  and  skillful  man.  The  determination  of  whether  he  was 
exercising  due  care  when  he  fell  from  the  car  does  not  depend  upon 
the  care  exercised  by  him  at  other  times,  or  whether  he  was  usually 
careful  in  the  performance  of  his  duties  as  a  railroad  man,  but  does 
depend  upon  his  conduct  at  the  time  of  the  accident.  The  witness 
who  gave  the  testimony  was  a  conductor  on  the  same  railroad;  had 
been  acquainted  with  him  for  a  year,  and  claimed  to  have  the  means 
of  knowing  as  to  whether  he  was  a  careful  railroad  man;  and  his 
testimony  may  have  had  much  weight  with  the  jury  in  determining 
that  the  deceased  was  in  the  exercise  of  due  care.  With  the  evi- 
dence before  them  as  to  the  care  he  used  at  the  time,  the  jury  could 
determine  better  than  any  expert  whether  or  not  he  was  negligent; 
and  the  fact  that  he  was  generally  careful  would  be  unavailing  if 
the  testimony  showed  that  his  negligence  in  this  instance  contributed 
to  the  injury.  Testimony  of  this  character  is  no  more  admissible 
than  an  offer  by  the  railroad  company  to  show  his  want  of  care  at 
the  time  of  the  accident  by  proving  that  he  was  negligent  at  other 
times,  or  generally  careless.  Exceptions  are  made  in  some  cases 
where  there  are  no  eyewitnesses  of  the  accident,  and  better  evidence 
cannot  be  obtained  as  to  whether  the  injured  person  exercised  due 
care;  but  all  the  authorities  hold  such  testimony  to  be  inadmissible 
where  the  testimony  of  persons  who  witnessed  the  accident  is  avail- 
able. (Bryant  v.  Rid.  Co.,  56  Vt.  710;  Dunham  v.  Rackliff,  71  Me. 
345 ;  Hays  v.  Millar,  "^y  Pa.  St.  238 ;  Tenney  v.  Tuttle,  i  Allen,  185 ; 
McDonald  v.  Savoy,  no  Mass.  49;  Chase  v.  Rid.  Co.,  19  Am.  & 
Eng.  Rid.  Cases,  356;  Morris  v.  East  Haven,  41  Conn.  252;  Baldwin 
V.  Western  Rid.  Co.,  4  Gray,  333;  Cen.  Rid.  Co.  v.  Roach,  64  Ga. 
635;  Chicago  &c.  Rid.  Co.  v.  Clark,  108  111.  113;  same  case,  15  Am. 


1 68  Cases  on  Evidence 

&  Eng.  Rid.  Cases,  26;  Elliott  v.  Chicago  &c.  Rid.  Co.,  38  Am.  & 
Eng.  Rid  cases,  62;  i  Greenl,  Ev.  sec.  84.) 

Neither  was  the  testimony  introduced  in  regard  to  how  railroad 
men  should  and  do  ascend  the  ladder  of  a  box  car  relevant  nor 
competent.  The  practice  followed  by  others  throws  no  light  on  the 
care  used  by  Patterson  in  this  case.  It  is  not  claimed  that  the  opin- 
ions of  experts  are  necessary  in  the  case;  and  to  allow  testimony 
as  to  how  others  climbed  the  ladder,  would  be  to  create  collateral 
issues  as  to  the  prudence  of  their  conduct  and  to  unnecessarily  pro- 
tract the  trial.  The  question  of  whether  Patterson  was  guilty  of 
such  negligence  as  would  preclude  a  recovery,  was  an  issue  before 
the  jury,  and  the  practice  or  usage  of  others  would  not  tend  to 
prove  care  on  his  part;  and  such  testimony  should  not  have  been 
received.  (Chicago,  &c.,  Rid.  Co.  v.  Clark,  supra;  Lawrence  v.  Hud- 
son, 12  Heisk.  671;  Chicago,  &c.  Co.  v.  Moranda,  108  111.  576;  Rly. 
Co.  V.  Evansich,  61  Tex.  3 ;  Bryant  v.  Rid.  Co.,  supra;  Bailey  v.  New 
Haven,  &c.  Co.,  107  Mass.  496;  Koons  v.  Rid  Co.,  65  Mo.  592; 
Crocker  v.  Schureman,  7  Mo.  App.  358;  Cleveland  v.  Steamboat  Co., 
5  Hun.  523;  Lawson  on  Usages,  328.) 

To  account  for  the  fall,  a  witness,  who  was  not  present  at  the 
time  gave  the  following  testimony: 

"Q.  You  say  you  have  passed  over  this  road  a  great  many  times? 
A.     I  have. 

"Q.     And  over  this  bridge?    A.    Yes,  sir. 

"Q.  Now,  can  you  state  to  the  jury,  under  the  circumstances 
which  surrounded  Mr.  Patterson  there,  whether  or  not  there  was 
dny  cause  why  he  should  have  ascended  that  car  with  great  speed 
and  haste,  and  if  so,  what  that  cause  was?  Explain  to  the  jury. 
A.  Well,  the  way  that  man  started  in  to  go  up  the  side  of  the  car, 
he  couldn't  see  the  bridge  when  he  started;  and  at  the  speed  the 
train  was  running,  and  him  climbing  up  the  side  of  the  car,  by  the 
time  the  engine  struck  the  bridge  he  would  be  towards  the  top,  and 
when  he  heard  the  thundering  noise  that  the  engine  makes  when  it 
strikes  a  bridge,  and  he  hurried  to  get  on  top  of  the  car." 

This  testimony  was  given  over  the  objection  of  the  plaintiff  in 
error.  The  witness  was  the  conductor  of  another  train,  who  was  far 
away  when  Patterson  fell  from  the  box  car.  He  did  not  know  and 
could  not  state  whether  Patterson  could  see  the  bridge  when  he 
started  to  ascend  the  ladder,  nor  how  far  he  had  ascended  when  the 
bridge  was  reached;  neither  was  he  competent  to  state  what  causes 


Character  169 

operated  on  the  mind  of  Patterson  that  led  him  to  ascend  the  ladder 
with  great  speed  and  haste. 

The  admission  of  the  incompetent  testimony  was  error,  for  which 
the  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 

All  the  Justices  concurring. 


GERTZ  V.  FITCHBURG  R.  R.  CO. 
i^j  Mass.  77.     (1884) 

Tort,  for  personal  injuries  received  by  the  plaintiflF  while  in  the 
defendant's  employ.  At  the  trial  in  the  Superior  Court,  before 
Aldrich,  J.,  the  jury  returned  a  verdict  for  the  defendant;  and  the 
plaintiff  alleged  exceptions  to  the  exclusion  of  certain  evidence,  which 
appears  in  the  opinion. 

Holmes,  J.  In  this  case,  the  plaintiff  having  testified  as  a  witness, 
the  defendant  put  in  evidence  the  record  of  his  conviction  in  1876, 
in  the  United  States  District  Court,  of  the  crime  of  falsely  personat- 
ing a  United  States  revenue  officer.  The  plaintiff  then  offered  evi- 
dence of  his  character  and  present  reputation  for  veracity,  which 
was  excluded,  subject  to  his  exception. 

We  think  that  the  evidence  of  his  reputation  for  truth  should 
have  been  admitted,  and  that  the  exception  must  be  sustained.  There 
is  a  clear  distinction  between  this  case  and  those  in  which  such  evi- 
dence has  been  held  inadmissible,  for  instance  to  rebut  evidence  of 
contradictory  statements ;  Russell  v.  Coffin,  8  Pick.  143 ;  Brown  v, 
Mooers,  6  Gray,  451;  or  where  the  witness  is  directly  contradicted 
as  to  the  principal  fact  by  other  witnesses.  At  wood  v.  Dearborn,  i 
Allen,  483. 

In  such  cases,  it  is  true  that  the  result  sought  to  be  reached  is 
the  same  as  in  the  present, — to  induce  the  jury  to  disbelieve  the 
witness.  But  the  mode  of  reaching  the  result  is  different.  For,  while 
contradiction  or  proof  of  contradictory  statements  may  very  well 
have  the  incidental  effect  of  impeaching  the  character  for  truth  of 
the  contradicted  witness  in  the  minds  of  the  jury,  the  proof  is  not 
directed  to  that  point.  The  purpose  and  only  direct  effect  of  the 
evidence  are  to  show  that  the  witness  is  not  to  be  believed  in  this 
instance.     But  the  reason  why  he  is  not  to  be  believed  is  left  un- 


170  Cases  on  Evidence 

touched.  That  may  be  found  in  forgetfulness  on  the  part  of  the 
witness,  or  in  his  having  been  deceived,  or  in  any  other  possible 
cause.  The  disbelief  sought  to  be  produced  is  perfectly  consistent 
with  an  admission  of  his  general  good  character  for  truth,  as  well  as 
for  the  other  virtues ;  and  until  the  character  of  a  witness  is  assailed, 
it  cannot  be  fortified  by  evidence. 

Oh  the  other  hand,  when  it  is  proved  that  a  witness  has  been  con- 
victed of  a  crime,  the  only  ground  for  disbelieving  him  which  such 
proof  affords  is  the  general  readiness  to  do  evil  which  the  conviction 
may  be  supposed  to  show.  It  is  from  that  general  disposition  alone 
that  the  jury  is  asked  to  infer  a  readiness  to  lie  in  the  particular  case, 
and  thence  that  he  has  lied  in  fact.  The  evidence  has  no  tendency 
that  he  was  mistaken,  but  only  that  he  has  perjured  himself,  and  it 
reaches  that  conclusion  solely  through  the  general  proposition  that 
he  is  of  bad  character  and  unworthy  of  credit,  i  Gilb.  Ev.  (6th  ed.) 
126. 

The  conviction  in  the  United  States  District  Court  was  for  a  felony 
punishable  with  imprisonment  (U.  S.  St.  of  March  2,  1867,  sec.  28) 
and,  assuming  that  it  stands  on  the  same  footing  as  a  conviction  in 
another  State,  it  would  have  been  admissible,  according  to  the  dicta 
in  our  cases,  independently  of  statute,  not  to  exclude  the  witness, 
but  to  impeach  his  credit.  Commonwealth  v.  Green,  17  Mass.  515, 
541.  Commonwealth  v.  Knapp,  9  Pick.  496,  511.  Utley  v.  Merrick, 
II  Met.  302.  See  Rev.  Sts.  c.  94,  sec.  56.  And  when  a  conviction 
is  admitted  for  that  purpose,  it  always  may  be  rebutted  by  evidence 
of  good  character  for  truth.  Commonwealth  v.  Green,  ubi  supra. 
Russel  v.  Coffin,  8  Pick.  143,  154.  Rex  v.  Clarke,  2  Stark,  241.  Webb^ 
V.  State,  29  Ohio  St.  351. 

It  is  true  that  a  doubt  is  thrown  upon  this  doctrine  in  Harrington 
V.  Lincoln,  4  Gray,  563,  568 ;  but  that  case  was  decided  on  the  ground 
that  the  cross-examination  which  showed  that  the  witness  had  been 
charged  with  a  crime  also  showed  that  he  had  been  acquitted,  and 
cannot  be  regarded  as  an  authority  against  our  decision,  whether  the 
ratio  decidendi  adopted  be  reconcilable  with  later  cases  or  not.  Com- 
monwealth V.  Ingraham,  7  Gray,  46. 

The  applicability  of  the  foregoing  reasoning  is  made  clear  by  the 
language  of  our  statutes.  By  the  Pub.  Sts.  c.  169,  sec.  19,  the  only 
purpose  for  which  conviction  of  a  crime  may  be  shown,  in  any  case, 
is  to  affect  credibility.  Even  if  the  conviction  proved  here  would  have 
excluded  the  witness  but  for  the  statute  cutting  down  its  effect,  it 
could  not  be  maintained  that  evidence  of  reputation   for  truth  re- 


Character  171 

mained  inadmissible  because  it  would  have  been  so  when  the  witness 
was  excluded.  The  statute  puts  all  convictions  of  crime  on  the  same 
footing, — those  which  formerly  excluded,  those  which  always  have 
gone  only  to  credibility,  and  it  would  seem,  those  which  formerly 
would  not  have  been  admissible  at  all.  (We  assume  that  the  words 
"a  crime"  in  the  Pub.  Sts.  c.  169,  sec.  19,  mean  the  same  as  "any 
crime"  in  the  St.  of  1870,  c.  393,  sec.  3.  Gen.  Sts.  c.  131  sec.  13. 
Sts.  1852,  c.  312,  sec.  60;  1851,  c.  233,  sec.  97.  Commonwealth  v. 
Hall,  4  Allen,  305.)  And  therefore  any  evidence  which  was  admis- 
sible to  rebut  a  conviction  that  only  discredited  before  the  statute, 
must  now  be  admissible  to  rebut  all  convictions  that  may  be  put  in 
evidence.  Whether  any  different  rule  would  apply  when  the  fact  is 
only  brought  out  on  cross-examination  we  need  not  consider. 

The  exception  to  the  exclusion  of  evidence  that  the  witness  was 
innocent  of  the  offense  of  which  he  was  convicted,  and  explaining 
why  he  was  convicted,  is  not  much  pressed,  and  is  overruled.  Com- 
monwealth V.  Gallagher,  126  Mass.  54, 


COMMONWEALTH  v.  O'BRIEN. 
up  Mass.  342.     (i8y6) 

Indictment  charging  the  defendant  with  an  assault  on  July  7,  1875, 
on  James  M.  Ellis,  with  a  certain  dangerous  weapon,  to  wit,  with  a 
knife,  with  the  intent  to  kill. 

During  the  trial  the  defendant  called  several  witnesses,  who  tes- 
tified to  the  fact  that  the  defendant  had  the  reputation  of  being  a 
peaceable  and  quiet  person.  The  defendant  did  not  testify  in  the 
case.  After  the  evidence  for  the  defense  was  closed,  the  government 
called  one  Davis,  an  officer,  and  offered  to  show  by  him  that  the  de- 
fendant was  one  of  four  defendants  named  in  an  indictment  for  an 
assault  upon  one  John  Walsh,  The  defendant  objected,  but  the  judge 
admitted  the  evidence,  and  the  defendant  excepted. 

Endicott,  J.  The  defendant  called  witnesses  who  testified  to  his 
general  reputation  as  a  peaceable  and  quiet  citizen.  The  government 
was  then  allowed  to  prove  that  the  defendant  had  been  indicted  for 
an  assault,  and  to  put  in  evidence  an  indictment,  wherein  he  was 
with  other  persons,  indicted  for  an  assault  upon  one  John  Walsh.  To 
this  indictment  it  appeared   that  the  defendants  pleaded  not  guilty; 


172  Cases  on  EvroENCE 

two  days  afterwards  satisfaction  was  filed,  and  on  the  day  following 
the  plea  was  retracted  by  the  defendants,  and  they  pleaded  guilty. 
The  indictment  was  then  placed  on  file  on  payment  of  costs,  which 
were  paid,  but  no  sentence  was  passed.  The  evidence  thus  admitted 
to  meet  evidence  of  general  reputation,  was,  in  substance,  that  the 
prisoner  had  committed  another  assault,  and  had  in  court  admitted 
or  confessed  the  same  by  a  plea  of  guilty.  And  the  question  is,  can 
a  particular  fact  be  proved  to  rebut  evidence  of  a  general  reputation. 

Where  a  party  undertakes  to  show  that  his  reputation  is  good,  or 
that  the  reputation  of  the  other  party  or  witness  is  bad,  he  cannot 
put  in  evidence  of  particular  facts  to  prove  the  general  reputation 
he  is  endeavoring  to  establish.  And  to  meet  evidence  of  general 
reputation  the  opposing  party  may  put  in  evidence  to  the  contrary 
of  a  like  general  character.  But  he  cannot  prove  particular  facts  for 
the  reason  that  a  particular  fact  does  not  necessarily  establish  a  gen- 
eral reputation  or  fairly  meet  the  issue  presented,  and  may  also  raise 
collateral  issues;  and  for  the  further  reason  that  while  a  party  is  pre- 
sumed always  to  be  ready  to  defend  his  general  reputation,  he  is 
not  expected  to  be  prepared  to  meet  a  distinct  and  specific  charge. 
Peterson  v.  Morgan,  ii6  Mass.  350.  / 

In  Commonwealth  v.  Hardy,  2  Mass.  303,  318,  it  was  said  by  Chief 
Justice  Parsons :  "It  is  not  competent  for  the  prosecutor  to  go  into 
this  inquiry,  until  the  defendant  has  voluntarily  put  his  character  in 
issue,  and  in  such  case  there  can  be  no  examination  as  to  particular 
facts."  See  Commonwealth  v.  Sackett,  22  Pick,  394;  Commonwealth 
V.  Webster,  5  Cush.  295. 

In  a  case  heard  before  all  the  judges  of  England,  it  was  held  that 
if  evidence  of  good  character  is  given  in  behalf  of  the  prisoner  evi- 
dence of  bad  character  may  be  given  in  reply;  but  in  either  case  the 
evidence  must  be  confined  to  the  prisoner's  general  reputation,  and 
the  individual  opinion  of  the  witness  as  to  his  disposition,  founded 
on  his  own  experience  and  observation  is  inadmissible.  Chief  Justice 
Cockburn,  in  delivering  the  opinion  of  the  court,  says :  "The  only 
way  of  getting  at  it  (his  character)  is  by  giving  evidence  of  his 
general  character  founded  on  his  general  reputation  in  the  neighbor- 
hood in  which  he  lives."  "It  is  quite  clear  that,  as  the  law  now  stands, 
the  prisoner  cannot  give  evidence  of  particular  facts,  although  one 
fact  would  weigh  more  than  the  opinion  of  all  his  friends  and  neigh- 
bors. So,  too,  evidence  of  antecedent  bad  conduct  would  form  equally 
good  ground  for  inferring  the  prisoner's  guilt,  yet  it  is  quite  clear  evi- 
dence of  that  kind  is  inadmissible."    *    *     * 


Character  173 

It  is  true  that  upon  cross-examination  of  a  witness,  testifying 
to  general  reputation,  questions  may  be  put  to  show  the  sources  of 
his  information,  and  particular  facts  may  be  called  to  the  witness's 
attention,  and  he  may  be  asked  if  he  ever  heard  of  them;  but  this  is 
allowed  not  for  the  purpose  of  establishing  the  truth  of  these  facts, 
but  to  test  the  credibility  of  the  witness,  and  to  ascertain  what  weight 
or  value  is  to  be  given  to  his  testimony.  Leonard  v.  Allen,  11  Cush. 
241.  Rex  V.  Martin,  6  C.  &  P.  562.  So  in  actions  for  slander,  evi- 
dence of  general  bad  character  of  the  plaintiff  may  be  put  in  evi- 
dence in  mitigation  of  damages ;  and  where  the  plaintiff  alleges  that 
the  defendant  has  slandered  him  in  a  particular  respect,  as  for  thiev- 
ing, the  defendant  may  put  in  evidence  for  the  same  purpose  that  the 
plaintiff's  general  reputation  in  that  respect  is  also  bad.  Clark  v. 
Brown,  116  Mass.  504.  But  we  are  not  aware  of  any  case,  where  the 
defendant  upon  that  issue  has  been  allowed  to  prove  a  particular  act 
of  theft. 

We  are  of  opinion  therefore  that  the  learned  judge  erred  in  admit- 
ting this  evidence.  The  government  was  entitled  to  rebut  the  evi- 
dence of  the  defendant,  he  having  put  his  character  in  issue,  but  could 
not  do  so  by  proof  of  another  assault. 

Exceptions  sustained. 


REGINA  V.  RODEN. 
12  Cox  Cr.  Ca.  630.     (18/4) 

Prisoner  was  indicted  for  the  murder  of  her  child  Clara  Roden. 

Counsel  for  the  prosecution  tendered  evidence  to  prove  that  the 
prisoner  had  had  four  other  children  who  had  also  died  in  infancy 
at  early  ages.  He  cited  Reg.  v.  Cotton  (12  Cox  Cr.  Ca.  400),  where 
a  prisoner  was  charged  with  the  murder  of  her  child  by  poison,  and  the 
defense  was  that  its  death  resulted  from  an  accidental  taking  of  such 
poison ;  evidence  to  prove  that  two  other  children  of  hers  and  a  lodger 
in  her  house  had  died  previous  to  the  present  charge  from  the  same 
poison  was  held  to  be  admissible.. 

Rose  objected.  The  evidence  tendered,  although  of  no  real  legal 
value,  would,  if  given,  greatly  prejudice  the  case  in  the  minds  of  the 
jury.     That  admitted  in  Reg.  v.  Cotton  pointed  directly  to  prior  acts 


174  Cases  on  Evidence 

of  poisoning,  but  here  it  is  not  proposed  to  prove  that  the  four  chil- 
dren died  from  other  than  natural  causes. 

Lush,  J.  The  value  of  the  evidence  cannot  affect  its  admissibility. 
The  principle  of  Reg.  v.  Cotton  applies.  The  Lord  Chief  Justice  and 
I  were  consulted  upon  the  point  in  that  case  by  my  brother  Archibald 
before  the  trial,  and,  having  considered  it,  we  were  clearly  of  opinion 
that  the  evidence  was  admissible.  I  think  the  evidence  now  tendered 
may  likewise  be  received. 

Verdict — Not  Guilty. 


HATT  v.  MAY. 
144  ^oss.  i86.     (1887) 

Tort  for  personal  injuries  occasioned  to  the  plaintiff  while  at  work 
with  a  pile  driver  in  the  defendant's  employ.  At  the  trial  in  the 
Superior  Court,  before  Thompson,  J.,  the  jury  returned  a  verdict 
for  the  defendant;  and  the  plaintiff  alleged  exceptions. 

Devexs,  J.  The  plaintiff,  while  in  the  defendant's  employ,  was 
injured  through  the  alleged  negligence  of  the  defendant's  foreman. 
He  was  permitted  to  put  in  evidence  that  the  foreman's  reputation  for 
competency  was  bad.  As  the  defendant  was  bound  to  use  due  care, 
both  in  procuring  and  retaining  a  suitable  person  as  the  foreman  in 
his  employ,  this  evidence  was  properly  admissible.  The  plaintiff 
desired  further  to  put  in  testimony  as  to  certain  specific  acts  of  care- 
lessness on  the  part  of  the  foreman,  while  engaged  on  the  same  job, 
and  before  the  accident  happened.  This  was  properly  excluded. 
Because  a  servant  may  have  been  guilty  of  negligence  on  certain  speci- 
fied occasions,  it  by  no  means  follows  that  he  was  on  the  occasion  in 
question,  or  that  he  might  not  ordinarily  be  a  careful  and  skillful 
workman,  and  properly  employed  as  such.  The  investigation  of  other 
individual  acts  of  alleged  carelessness  on  the  foreman's  part  would 
necessarily  have  a  tendency  to  continue  the  case  by  collateral  inquiries, 
to  protract  it  indefinitely  if  those  inquiries  were  carefully  made,  and 
to  mislead  and  distract  a  court  or  jury  from  the  true  issue.  Robinson 
v.  Fitchburg  &  Worcester  Railroad,  7  Gray,  92.  Maguire  v.  Middle- 
sex Railroad,  115  Mass.  239. 

Exception  overruled. 


Admissions  and  Confessions  175 

ADMISSIONS  ANB  CONTESSIONS-i 

SMITH  V.  PALMER. 
60  Mass.  513.     (1850) 

This  was  an  action  of  assumpsit,  in  which  the  plaintiff  declared 
originally  on  the  common  counts,  and  on  an  account  annexed  for  an 
order  drawn  by  the  plaintiff  in  favor  of  the  defendant  on  one  George 
C.  Goodwin,  for  matches,  and  paid  for  by  him,  and  for  money  fur- 
nished by  the  plaintiff  to  the  defendant. 

Fletcher,  J.  Besides  the  exception  in  regard  to  the  amendment, 
the  case  presents  two  other  exceptions  to  the  ruHng  of  the  judge. 
The  new  count  set  out  a  contract  of  the  defendant,  to  discontinue 
the  suit  in  Maine,  and  alleged  as  a  breach,  that  the  defendant  did  not 
discontinue,  but  prosecuted  the  suit  to  judgment  and  execution,  and 
that  the  plaintiff  had  been  compelled  to  pay  the  amount  recovered. 
Upon  the  trial,  the  plaintiff  was  permitted  to  give  in  evidence  in  sup- 
port of  the  allegations  in  the  writ  of  the  pendency  of  the  suit  in 
Maine,  of  the  failure  of  the  defendant  to  discontinue  it,  and  of  the 
prosecution  of  the  suit  to  judgment  and  execution,  the  oral  declara- 
tions, confessions,  and  admissions  of  the  defendant,  connected  with  a 
certain  paper  writing,  purporting  to  be  an  execution  issued  in  said 
action,  and  an  assignment  thereon  executed  by  the  defendant.  The 
defendant  then  requested  the  judge  to  rule  that  the  plaintiff  could 
not  maintain  his  case  on  the  special  count,  without  producing  a  cer- 
tified copy  of  the  judgment,  or  accounting  for  its  non-production,  so 
as  to  let  in  secondary  evidence.  But  the  court  refused  so  to  rule,  and 
instructed  the  jury,  that  the  foregoing  evidence,  though  not  the  most 
satisfactory,  was  yet  important  evidence  for  their  consideration,  on 
the  question  submitted  to  them  under  the  special  counts  in  the  dec- 
laration.    To  this  ruling  and  instruction  the  defendant  excepted. 

The  doctrine  maintained  by  the  defendant's  counsel,  and  the  au- 
thorities cited,  are  no  doubt  correct,  but  do  not  apply  to  the  case. 
The  case  of  Sheldon  v.  Frink,  12  Pick.  569,  was  an  attempt  to  prove  a 
record  by  parol,  by  a  witness  on  the  stand.  But  this  evidence  was 
most  properly  rejected.  A  record  cannot  be  proved  by  parol,  by  a 
witness  on  the  stand;  nor  can  the  contents  of  any  paper  be  proved, 
without  the  production  of  the  paper,  if  the  paper  can  be  produced. 

But  this  doctrine  does  not  apply  to  the  present  case,  this  is  a  case 
of  the  admission  of  a  party,  and  the  admission  of  a  party  stands  on 


1  Hughes  on  Evidence,  pp.  21  and  44. 


176  Cases  on  Evidence 

distinct  grounds.  The  admissions  of  a  party  are  not  open  to  the 
same  objection  which  belongs  to  parol  evidence  from  other  sources. 
A  party's  own  statements  and  admissions  are,  in  all  cases,  admissible 
in  evidence  against  him,  though  such  statements  and  admissions  may 
involve  what  must  necessarily  be  contained  in  some  writing,  deed  or 
record.  Thus,  the  statements  of  a  party,  that  certain  land  had  been 
conveyed,  might  be  admitted,  though  the  conveyance  must  be  by  deed 
recorded. 

The  general  principle,  as  to  the  production  of  written  evidence  as 
the  best  evidence,  does  not  apply  to  the  admissions  of  parties ;  as 
what  a  party  admits  against  himself  may  reasonably  be  taken  to  be 
true.  The  weight  and  value  of  the  statements  and  admissions  will 
vary  according  to  the  circumstances  and  must  be  determined  by  the 
jury.  The  ruling  of  the  judge  in  the  court  below  on  this  point  is 
well  supported  by  the  authorities.  See  the  case  of  Slatterie  v. 
Pooley,  6  M.  &  W.  664,  where  the  distinction  between  the  admissions 
of  parties,  and  parol  statements  from  other  sources,  as  to  written 
instruments,  is  fully  explained  and  supported.  The  general  doctrine 
is  also  found  in  i  Greenl.  Ev.  sees.  96  and  97  and  cases  cited  therein. 
In  the  present  case,  the  principal  fact  was,  that  the  defendant  had  not 
performed  his  contract,  in  regard  to  which  there  could  be  no  doubt 
that  his  admission  would  be  important  evidence,  and  the  execution 
reciting  the  judgment  assigned  by  the  defendant  himself  was  pro- 
duced, in  connection  with  the  admissions  and  statements  of  the  de- 
fendant. 

Exceptions  overruled. 


PEOPLE  v.  McMAHON. 
15  N.  Y.  384.     (1857) 


Writ  of  error  to  the  Supreme  Court.  The  appellant  was  tried  at 
the  Rensselaer  Oyer  and  Terminer,  upon  an  indictment  for  the  mur- 
der of  his  wife.  On  the  day  after  the  alleged  murder,  McMahon 
was  arrested  by  a  constable  without  warrant,  as  the  probable  mur- 
derer. He  was  taken  in  the  custody  of  the  officer  before  a  coroner 
then  holding  an  inquest  upon  the  body  of  the  deceased  woman,  and 
was  sworn  and  examined  as  a  witness,  and  immediately  thereafter  was 


Admissions  and  Confessions  177 

committed  to  jail.  Upon  the  trial  his  testimony  thus  taken  was  read 
in  evidence  against  him.  At  the  time  the  evidence  was  received,  it 
was  not  known  that  the  prisoner  was  charged  with  the  crime  when 
sworn  and  no  objection  was  taken  to  its  admission,  but  upon  the  facts 
appearing  in  the  course  of  the  trial,  the  prisoner's  counsel  moved  to 
strike  out  the  evidence,  and  the  court  refusing  so  do  do,  took  an 
exception.  This  was  the  only  error  alleged  to  have  been  committed. 
The  prisoner  was  convicted  and  sentenced.  A  bill  of  exceptions  was 
made  and  the  case  taken  upon  writ  of  error  to  the  Supreme  Court, 
which  affirmed  the  judgment  of  the  Oyer  and  Terminer,  and  the 
cause  was  thereupon  brought  to  this  court  by  writ  of  error. 

Selden,  J.  Confessions  and  statements,  made  by  persons  charged 
with  crime,  have  been  very  differently  regarded  by  the  civil  and  the 
common  law.  The  former,  reposing  with  confidence  upon  the  as- 
sumption that  one  who  is  innocent  will  never  admit  that  which  tends 
to  show  guilt,  treats  the  declarations  and  admissions  of  the  accused 
as  evidence  of  the  most  satisfactory  kind.  To  such  an  extent  does  it 
carry  this  idea,  that  in  all  except  capital  cases  a  confession  by  the 
accused  is  deemed  conclusive  evidence  of  guilt,  unless  met  by  over- 
whelming proof  to  the  contrary.  (Domat's  Civil  Law,  sec.  2086,  Cush- 
ing's  ed.) 

The  common  law,  on  the  other  hand,  with,  as  I  think,  a  truer 
philosophy  and  better  appreciation  of  the  nature  and  operations  of 
mind,  regards  this  species  of  evidence  with  distrust.  It  carefully 
scrutinizes  the  circumstances,  and  rejects  the  evidence  if  it  sees  that  no 
safe  inferences  can  be  drawn  from  it.  The  first  distinction  which 
it  makes  is  between  a  declaration  or  statement  made  before,  and 
one  made  after,  the  accused  was  conscious  of  being  charged  with  or 
suspected  of  the  crime.  If  before,  it  is  admissible  in  all  cases,  whether 
made  under  oath  or  without  oath,  upon  a  judicial  proceeding  or 
otherwise;  but  if  made  afterwards,  the  law  becomes  at  once  cautious 
and  hesitating;  the  inquiry  then  is,  was  it  voluntary?  For  unless 
entirely  voluntary,  it  is  held  not  to  be  admissible. 

In  order  to  apply  this  rule  it  is  necessary  to  know  what  is  meant 
by  the  terms  voluntary.  The  word  is  evidently  not  in  all  cases  used 
in  contradistinction  to  compulsory;  because  a  confession  obtained 
by  either  threats  or  promises,  from  any  one  having  authority  over  the 
accused  or  concerned  in  the  administration  of  justice,  is  uniformly 
held  to  be  inadmissible.  However  sHght  the  threat  or  small  the  in- 
ducement thus  held  out,  the  statement  will  be  excluded  as  not  volun- 
tary.    It  is  plain  therefore  that,  in  such  cases  at  least,  by  voluntary 


178  Cases'  on  Evidence 

is  meant,  proceeding  from  the  spontaneous  suggestion  of  the  party's 
own  mind,  free  from  the  influence  of  any  extraneous  disturbing 
cause. 

The  principle  upon  which  this  rule  is  based  is  obvious.  It  is,  that 
we  cannot  safely  judge  of  the  relation  between  the  motives  and  the 
declarations  of  the  accused,  when  to  the  natural  agitation  conse- 
quent upon  being  charged  with  crime  is  superadded  the  disturbance 
produced  by  hopes  or  fears  artificially  excited.  It  is  because  it  is  in 
its  nature  unreliable,  and  not  on  account  of  any  impropriety  in  the 
manner  of  obtaining  it,  that  the  evidence  is  excluded.  In  this  all  the 
authorities  agree.  Mr.  Phillips,  speaking  on  this  subject,  says :  "A 
confession  so  obtained  cannot  be  received,  on  account  of  the  uncer- 
tainty and  doubt  whether  the  prisoner  might  not  have  been  induced, 
from  motives  of  fear  or  interest,  to  make  an  untrue  statement." 

The  case  of  Rex  v.  Warickshall  (i  Leach  C.  C,  263)  affords  a 
strong  test  of  this  doctrine.  The  prisoner  had  made  a  confession 
which  was  held  to  be  inadmissible;  but  this  confession  had  led  to 
the  discovery  of  other  facts  sufficient  to  convict.  Her  counsel  con- 
tended that,  the  confession  being  inadmissible,  facts  discovered  by 
means  of  it  must  be  equally  so;  and  if  the  confession  was  excluded, 
not  as  unreliable,  but  as  having  been  improperly  obtained,  or  on  ac- 
count of  any  supposed  violation  of  the  public  faith,  as  was  there  con- 
tended, the  argument  would  have  been  unanswerable.  The  evidence, 
however,  was  received,  and  the  court  say:  "Confessions  are  received 
in  evidence  or  rejected  as  inadmissible,  under  a  consideration  whether 
they  are  or  are  not  entitled  to  credit."  (See  also  Rex  v.  Butcher,  note 
to  Warickshall's  case;  Rex  v,  Lockhart,  i  Leach  C.  C  386;  Regina 
V.  Gould,  9  Car.  &  Pa.  364.) 

The  doctrine  of  the  American  courts  is  the  same.  In  the  case  of 
Commonwealth  v.  Knapp  (9  Pick.  496),  Morton,  J.,  speaking  of  the 
grounds  upon  which  the  statements  of  prisoners  are  excluded  are  not 
voluntary,  after  remarking  that  it  is  not  because  their  admission 
would  be  a  breach  of  good  faith,  nor  because  they  have  been  illegally 
extorted,  says:  "but  the  reason  is  that,  in  the  agitation  of  mind  in 
which  the  party  charged  is  supposed  to  be,  he  is  liable  to  be  influenced 
by  the  hope  of  advantage  or  fear  of  injury  to  state  things  which  are 
not  true." 

Judgment  reversed  and  new  trial  ordered. 


Admissions  and  Concessions  179 

COMMONWEALTH  v.  MYERS. 
160  Mass.  330.     (i8p4) 

Indictment,  for  the  larceny  of  two  whiffletrees,  the  property  of 
Edwin  V.  Kinsley,  on  September  22,  1893,  at  Canton.  Trial  in  the 
Superior  Court,  before  Bond,  J.,  who  allowed  a  bill  of  exceptions, 
in  substance  as  follows. 

The  government  offered  in  evidence  an  alleged  confession  of  the 
defendant  to  one  Richard  Vanston,  a  police  officer  in  the  town  of 
Stoughton.  The  officer  testified  that  he  made  the  arrest  of  the  de- 
fendant and  one  Sylvester,  who  was  joined  with  the  defendant  in  the 
indictment,  upon  the  night  of  October  2,  1893;  that  he  took  the  de- 
fendant to  the  lock-up  in  Stoughton;  and  that  the  defendant  at  first 
denied  any  knowledge  of  the  alleged  larceny.  The  officer  further 
testified,  that  having  the  defendant  in  his  custody  in  the  lock-up,  "T 
told  him  he  had  better  tell  the  truth."  The  confession  alleged  to  have 
been  made  to  the  officer  at  that  time  was  thereupon  excluded. 

The  government  then  called  Edwin  V.  Kinsley,  the  owner  of  the 
property,  who  testified  that  he  was  present  the  next  day,  October  3, 
in  the  District  Court  of  Southern  Norfolk,  when  the  defendant 
was  arraigned ;  that  the  defendant  was  in  the  dock,  and  was  asked 
whether  he  was  guilty  or  not  guilty,  and  he  said  "he  did  not  know 
anything  about  the  whiffletrees" ;  that  Vanston,  the  officer  to  whom  it 
was  alleged  the  defendant  made  the  confession  the  night  before,  there- 
upon asked  the  defendant  "if  he  was  not  there  when  they  were  taken, 
and  he  said  he  was  there,  but  did  not  go  into  the  barn";  that  the 
officer  then  asked  him,  "Didn't  you  stay  outside  ?"  and  he  said,  "Yes" ; 
and  that  he  then  asked  him  "if  he  waited  for  Sylvester  to  bring  out 
the  stuff  and  went  with  him  and  hid  them  up,"  and  he  said,  "Yes." 

The  defendant  objected  to  the  admission  of  Kinsley's  testimony,  as 
above  stated,  but  the  judge  admitted  it;  and  the  defendant  excepted. 

There  was  no  other  evidence  to  connect  the  defendant  with  the 
crime. 

The  jury  returned  a  verdict  of  guilty;  and  the  defendant  alleged 
exceptions. 

Morton,  J.  The  exclusion  of  the  confession  made  to  Vanston  on 
the  night  of  the  arrest  was  correct.  Commonwealth  v.  Nott,  135 
Mass.  269.  Commonwealth  v.  Preece,  140  Mass.  276.  The  point  now 
is  whether  the  questions  to  the  defendant  by  the  same  officer,  and  the 
defendant's  answers  thereto  the  next  day  in  the  District  Court,  as  tes- 


i8o  Cases  on  Evidence 

tified  to  by  a  witness  who  heard  them,  were  rightly  admitted.  It  may 
be  fairly  assumed  that  the  defendant  was,  to  some  extent  at  least, 
induced  to  answer  as  he  did  by  Vanston's  knowledge  derived  from 
what  he  had  himself  told  him.  But  the  question  is  whether  the  an- 
swers were  voluntary  or  were  made  under  the  influence  of  what  the 
officer  had  told  him  the  night  before  when  he  said  to  him  that  he 
had  better  tell  the  truth. 

At  the  time  of  making  the  answers  the  defendant  had  been  ar- 
raigned, and  was  in  open  court.  It  does  not  appear  at  what  time  of 
the  night  he  was  arrested,  or  at  what  time  of  day  he  was  arraigned. 
But  a  number  of  hours  had  passed  since  the  remark  of  the  officer, 
and  he  had  had  abundant  opportunity  for  reflection  and  consideration. 
When  asked  if  he  was  guilty  or  not  guilty,  instead  of  answering 
directly,  he  said  voluntarily  that  "he  did  not  know  anything  about  the 
whiffletrees."  Thereupon,  in  the  presence  of  the  justice,  and  with- 
out objection  from  him  the  officer  asked  the  questions,  and  the  de- 
fendant made  the  answers,  which  were  testified  to.  No  indictment 
was  then  held  out  to  him.  He  was  not  obliged  to  answer  if  he  did 
not  choose  to.  He  could  have  applied  to  the  court,  if  he  had  seen  fit, 
for  protection.  He  did  not  do  so.  He  appears  to  have  answered  the 
questions  freely,  voluntarily,  and  truthfulh\  and  so  far  as  the  evidence 
discloses  without  relying  upon  or  even  remembering  the  words  of  the 
officer  the  night  before.  Confessions  are  not  to  J)e  excluded  because 
they  are  the  adniissions  of  a  person  charged  with  the  commission 
of  a  crime,  but  only  where  the  circumstances  are  such  under  which 
they  are  made  that  a  reasonable  presumption  arises  that  they  may 
have  been  induced  by  a  promise  or  threat  from  one  in  authority, 
and  consequently  are  open  to  the  objection  that  they  may  not  be  true. 
Commonwealth  v.  Sego,  125  Mass.  210,  213.  Commonwealth  v. 
Preece,  ubi  supra.  There  are  many  cases  in  which  confessions  made 
originally  under  the  influence  of  a  promise  or  threat,  and  then  repeated, 
have  been  excluded,  because  of  the  presumption  that,  under  the  cir- 
cumstances of  the  case,  the  party  in  making  them  was  influenced  by 
the  original  promise  or  threat.  There  are  also  many  cases  where 
such  confessions  have  been  admitted  on  the  ground  that  there  was 
no  reasonable  presumption  that  the  threat  or  promise  operated  to 
induce  them.  It  would  serve  no  useful  purpose  to  attempt  to  review, 
or  consider,  or  reconcile  all  of  these  cases,  if  that  were  possible.  For 
a  collection  of  them,  see  3  Am.  &  Eng.  Encyc.  of  Law,  439  et  seq. 
We  think  that  this  case  comes  within  the  latter  class,  and  that  the 
circumstances  were  not  such  as  to  afford  a  reasonable  presumption 


Admissions  and  Confessions  i8i 

that  the  defendant's  answers  were  influenced  by  the  remark  made 
to  him  by  Vanston,  and  that  therefore  they  must  be  regarded  as  made 
voluntarily.  If  they  had  been  made  to  another  officer,  we  presume 
no  question  would  have  been  raised  as  to  their  admissibility.  We 
do  not  think  that,  under  the  circumstances,  the  fact  that  they  were 
made  to  the  same  officer  to  whom  the  original  confession  was  made, 
and  who  then  held  out  the  inducement,  renders  them  incompetent. 
See  Commonwealth  v.  Morey,  i  Gray,  461 ;  Commonwealth  v.  Whitte- 
more,  11  Gray,  201;  Commonwealth  v.  Cuffee,  108  Mass.  285;  Com- 
monwealth V.  Crocker,  108  Mass.  464;  Commonwealth  v.  Mitchell, 
117  Mass.  431;  432;  Commonwealth  v.  Smith,  iig  ]\Tass.  305;  Com- 
monwealth V.  Sego,  125  Mass.  210,  213;  Commonwealth  v.  Flagg, 
135  Mass.  5451. 


STATE  V.  KORNSTETT. 
62  Kan.  221.     (1900) 


The  opinion  of  the  court  was  delivered  by 

Johnston,  J.  John  Kornstett  was  charged  with  and  convicted 
of  the  murder  of  his  cousin,  Nora  Kornstett,  and  the  severest  penalty 
of  the  law  was  adjudged  against  him.  In  substance,  the  information 
charged  the  appellant  with  having  attempted  to  ravish  his  cousin, 
and  that  then,  with  deliberation  and  premeditation,  he  choked  and 
beat  hpr  and  struck  her  head  against  a  tree  with  great  violence,  and 
afterward  he  threw  her  body  into  a  well  about  twenty  feet  deep  all 
with  intent  to  kill  and  murder  her,  and  that  the  wounds  and  injuries 
so  purposely  and  feloniously  inflicted  caused  her  death. 

Proof  of  confessions  made  by  the  defendant  was  received  in  evi- 
dence over  his  objections,  and  upon  these  rulings  error  is  assigned. 
About  the  time  of  his  arrest  he  was  closely  questioned  by  the  sheriff, 
who  believed  the  defendant  was  connected  with  the  commission  of 
the  offense,  and  before  admitting  his  guilt  he  was  told  that  some  of 
his  prior  statements  had  been  found  to  be  untrue.  He  finally  ac- 
knowledged his  guilt  to  the  sheriff,  giving  the  circumstances  in  con- 
siderable detail,  and  he  afterward  repeated  the  confession  to  a  num- 
ber of  other  persons.  He  knew  that  suspicion  was  directed  toward 
him,  and  that  there  was  considerable  excitement  in  the  community 
because  of  the  brutal  character  of  the  crime,  but  the  sheriff,  to  whom 


i83  Cases  on  Evidence 

the  confession  was  first  made,  testified  that  it  was  not  given  by  reason 
of  any  threat  made  or  promise  held  out.  While  the  defendant 
claimed  that  he  was  induced  by  the  pressure  of  fear  and  hope  to 
make  the  admission,  the  sheriff  states  that  he  told  the  defendant  that 
he  believed  the  defendant  knew  who  committed  the  offense,  and 
that  he  would  better  tell  all  he  knew  about  it;  and  that  if  he  was 
guilty  it  would  be  better  for  him  to  admit  the  truth,  and  that  if  he 
was  innocent  he  should  stick  to  it  regardless  of  the  suspicion  against 
him,  and  that  he,  the  sheriff  would  protect  him.  It  is  claimed  and 
the  defendant  testified,  that  hope  was  held  out  to  him  that  the  pun- 
ishment for  the  offense  would  be  confinement  in  the  reform  school 
or  reformatory,  but  this  is  expressly  denied  by  the  sheriff,  although 
he  does  state  that  in  response  to  an  inquiry  by  the  defendant  he 
explained  to  him  the  character  of  those  institutions.  It  is  well  settled 
that  an  extra-judicial  confession  will  not  be  received  in  evidence 
unless  it  has  been  freely  and  voluntarily  made.  If  it  has  been  ex- 
torted by  fear  or  induced  by  hope  of  profit,  benefit,  or  amelioration, 
it  will  be  excluded  as  involuntary.  However,  mere  advice  or  admoni- 
tion to  the  defendant  to  speak  the  truth,  which  does  not  import 
either  a  threat  or  benefit,  will  not  make  a  following  confession  incom- 
petent. According  to  the  testimony  of  the  sheriff,  the  confession 
was  admissible;  and  the  fact  that  the  defendant  confessed  so  freely 
and  frequently  to  others  at  different  places  and  times  and  under  vary- 
ing circumstances  appears  to  sustain  the  sheriff. 

The  judgment  is  affirmed. 


REX  V.  DERRINGTON. 
2  Car.  &  P.  630.     (1826) 


The  prisoners  were  indicted  for  a  burglary  in  the  house  of  Mr. 
George  Simcox. 

For  the  prosecution,  a  letter  written  by  the  prisoner  Derrington 
was  offered  in  evidence.  It  appeared,  that,  after  Derrington  was 
committed  to  Stafford  jail  on  this  charge,  he  asked  the  turnkey  if  he 
would  put  a  letter  into  the  post;  he  promised  to  do  so,  and  the  pris- 
oner gave  him  the  letter  in  question,  which  was  addressed  to  the 
prisoner's  father;  but  instead  of  putting  the  letter  into  the  post,  the 


Admissions  and  Confessions  183 

turnkey  gave  it  to  the  visiting  magistrates  of  the  jail,  who  sent  it  to 
the  prosecutor.  n 

Garrow,  B.  I  am  clearly  of  opinion  that  in  point  of  law,  this 
letter  is  admissible  in  evidence.  I  remember,  many  years  ago,  mak- 
ing this  very  objection  before  the  late  Mr.  Justice  Gk)uld,  who  over- 
ruled it.  The  only  cases  in  which  what  a  prisoner  says  or  writes  is 
not  evidence  are  two;  ist,  where  the  prisoner  is  induced  to  make 
any  confession  in  consequence  of  the  prosecutor,  &c.,  holding  out 
any  threat  or  promise  to  induce  him  to  confess ;  and  2ndly,  where 
the  communication  is  privileged,  as  being  made  to  his  counsel  or 
attorney.  This  not  being  either  of  those  cases,  I  must  receive  the 
evidence. 

Verdict — Guilty. 


STATE  V.  MITCHELL. 
61  N.  C.  447.    (1868) 


Murder,  tried  before  Warren,  J.,  at  a  Court  of  Oyer  and  Terminer 
for  Lenoir,  held  on  the  first  Monday  in  August,  1867. 

The  prisoner  had  been  arrested  by  the  military  authorities  of  the 
United  States,  for  the  murder  of  one  James  B.  Allen,  without  being 
informed  of  the  charge  against  him.  Upon  the  trial  the  State  offered 
evidence  of  his  confessions  made  in  prison  to  one  Cook,  who  was 
at  that  time  also  a  prisoner,  for  a  misdemeanor,  and  had  previously 
been  his  acquaintance. 

They  were  made  under  the  following  circumstances.  The  prisoner 
asked  the  witness,  What  in  the  hell  do  you  suppose  I  was  arrested 
for?  Witness  repHed  that  he  did  not  know.  Aft-^r  some  other  con- 
versation, the  prisoner  said.  If  you  will  not  tell  me  I  will  tell  you 
something.  Witness  said  he  would  not  tell,  but  if  he  did,  it  would 
make  no  difference,  for  one  criminal  could  not  testify  against  another. 
The  prisoner  then  said,  I  want  to  know  what  to  do;  and  witness  re- 
plied that  if  he  knew  the  circumstances  he  could  tell  him  what  to  do. 

Objection  was  made  to  the  reception  of  the  confessions  thereupon 
made  by  the  prisoner,  on  the  ground  that  they  were  improperly  and 
illegally  obtained.     They  were  however  received  by  the  court. 

The  prisoner  was  convicted,  and  a  rule  having  been  obtained  for 
a  new  trial  it  was  discharged,  and  there  was  judgment  and  appeal. 


184  Cases  on  Evidence 

4 

BattlB,  J.  The  only  question  presented  by  the  bill  of  excep- 
tions is,  whether  the  confession  of  the  prisoner  was  admissible. 

The  principle  upon  which  the  competency  of  the  confession  of  a 
prisoner  depends  was  well  stated  by  Judge  Henderson,  in  the  case  of 
the  State  v.  Roberts,  i  Dev.  261.  He  said,  "confessions  are  either 
voluntary  or  involuntary.  They  are  called  voluntary  when  made 
neither  under  the  influence  of  hope  or  fear,  but  are  attributable  to 
that  love  of  truth  which  predominates  in  the  breast  of  every  man  not 
operated  upon  by  other  motives  more  powerful  with  him,  and  which, 
it  is  said,  in  the  perfectly  good  man  cannot  be  countervailed.  These 
confessions  are  the  highest  evidences  of  truth,  even  in  cases  affecting 
life.  But  it  is  said,  and  said  with  truth,  that  confessions  induced 
by  hope  or  extorted  by  fear  are  of  all  kinds  of  evidence,  the  least  to 
be  relied  on,  and  are  therefore  entirely  to  be  rejected."  This  principle 
thus  clearly  enunciated  by  a  very  able  judge,  will  be  found  to  have 
pervaded  every  case  upon  the  subject  which  has  been  decided  by  this 
court.    See  Battle's  Digest,  Title  Evidence,  sec.  xxvi,  p.  505. 

The  confession  proposed  to  be  proved  in  the  present  case  must  be 
regarded  as  coming  under  the  head  of  voluntary  confessions.  The 
prisoner  himself  commenced  the  conversation  which  led  to  his  con- 
fession. When  the  prisoner  said  to  the  witness,  "I  want  to  know 
what  to  do,"  he  must  have  been  aware  that  the  witness  could  not 
tell  him  without  knowing  the  circumstances  of  his  case.  When  the 
latter  told  him  so,  therefore,  he  only  told  him  that  which  he  already 
knew ;  and  what  he,  thereupon  went  on  to  state  to  the  witness  was  not 
induced  by  any  hope  of  advantage  held  out  to  him  by  the  witness,  but 
by  the  suggestion  of  his  own  mind  to  get  the  witness'  advice  as  to 
the  course  he  ought  to  pursue.  So  far  from  being  under  any  influence 
to  make  a  false  statement,  he  had  the  strongest  motive  to  tell  the 
truth,  so  that  the  advice  of  his  acquaintance  might  be  of  service  to 
him.  In  view  of  the  question,  the  mistake  of  the  witness  as  to  the 
law  about  one  prisoner  testifying  against  another,  cannot  make  any 
difference.  The  prisoner  could  not  thereby  have  been  in  the  least 
induced  to  make  a  false  statement  of  the  facts  and  circumstances  of 
his  case.  All  that  can  be  said  is,  that  he  found  himself  placed  in  a 
difficult  and  dangerous  position,  and  wanted  the  advice  of  a  friend 
as  to  the  best  course  to  be  pursued  for  his  relief.  To  obtain  that 
advice  he  voluntarily  unbosomed  himself  to  a  person  who  he  thought 
might  be  trusted,  but  who  afterwards  proved  treacherous  and  dis- 
closed his  secret.  We  do  not  know  of  any  such  ground  for  excluding 
confessions,  and  think  the  Judge  was  right  in  admitting  them. 


Admissions  and  Confessions  185 

It  must  be  certified  that  we  find   no  error   in  the   record.     Per 
Curiam. 

No  Error. 


THE  QUEEN  v.  THOMPSON. 
2  Q.  B.  D.  12.     (i8ps) 

Case  stated  by  the  acting  chairman  of  quarter  sessions  for  the 
county  of  Westmoreland. 

At  the  Westmoreland  Quarter  Sessions,  held  at  Kendal  on  Oct.  21, 
1892,  Marcellus  Thompson  was  tried  for  embezzling  certain  moneys 
belonging  to  the  Kendall  Union  Gas  and  Water  Company,  his  masters. 

Mr.  Crewdson,  the  chairman  of  the  company,  at  whose  instance 
the  warrant  for  the  prisoner's  apprehension  had  been  issued  was  called 
as  a  witness  by  the  prosecution  to  prove  among  other  things  a  confes- 
sion by  the  prisoner. 

As  soon  as  this  confession  was  sought  to  be  put  in  evidence,  ob- 
jection was  taken  to  its  admissibility,  and  we  theriefore,  before  receiv- 
ing further  proof,  allowed  the  witness  to  be  cross-examined  by  the 
prisoner's  counsel.  In  answer  to  the  latter's  questions,  the  witness 
stated  that,  prior  to  the  confession  being  made,  the  prisoner's  brother 
and  brother-in-law  had  come  to  see  him,  and  that  at  this  interview 
he  said  to  the  prisoner's  brother,  "it  will  be  the  right  thing  for  Mar- 
cellus to  make  a  clean  breast  of  it."  The  witness  added  "I  won't 
swear  I  did  not  say  Tt  will  be  better  for  him  to  make  a  clean  breast 
of  it.'  I  may  have  done  so.  I  don't  think  I  did.  I  expected  what 
I  said  would  be  communicated  to  the  prisoner.  T  won't  swear  I  did 
not  intend  it  should  be  conveyed  to  the  prisoner.  I  should  expect  it 
would.  I  made  no  threat  or  promise  to  induce  the  prisoner  to  make 
a  confession.  I  held  out  no  hope  that  criminal  proceedings  would  not 
be  taken."  No  evidence  was  produced  to  the  court  tending  to  prove 
that  the  details  of  the  interview  had  been  communicated  to  the 
prisoner,  or  to  rebut  the  evidence  of  Mr.  Crewdson  as  to  what  took 
place  at  the  interview. 

It  was  then  contended  by  the  prisoner's  counsel  that  the  above 
statements  to  the  prisoner's  brother  were  inducements  to  the  prisoner 
to  confess,  held  out  by  a  person  in  authority,  and  that  evidence  of 
the  confession  was  therefore  inadmissible. 


1 86  Cases  on  Evidence 

The  prisoner  was  convicted  and  sentenced  to  three  years,  penal 
servitude. 

The  question  for  the  opinion  of  the  court  is  whether  the  evidence 
of  the  confession  was  properly  admitted. 

Cave,  J.  The  question  in  this  case  is  whether  a  particular  admis- 
sion made  by  the  prisoner  was  admissible  in  evidence  against  him. 
This  is  a  question  which  must  necessarily  arise  for  decision  in  a 
number  of  cases  both  at  petty  and  quarter  sessions ;  and  to  my  mind 
it  is  very  unsatisfactory  that  the  principle  which  must  guide  the  de- 
cision of  magistrates  in  these  cases  should  be  loosely  or  confusedly 
interpreted. 

Many  reasons  may  be  urged  in  favor  of  the  admissibility  of  all 
confessions,  subject  of  course  tq  their  being  tested  by  the  cross-ex- 
aminations of  those  who  heard  and  testify  of  them;  and  Bentham 
seems  to  have  been  of  this  opinion  (Rationale  of  Judicial  Evidence, 
Bk.  V.  ch.  vi,  s.  3).  But  this  is  not  the  law  of  England.  By  that 
law,  to  be  admissible,  a  confession  must  be  free  and  voluntary.  If  it 
proceeds  from  remorse  and  a  desire  to  make  reparation  for  the  crime, 
it  is  admissible.  If  it  flows  from  hope  or  fear,  excited  by  a  person  in 
authority,  it  is  inadmissible.  On  this  point  the  authorities  are  unan- 
imous. As  Mr.  Taylor  says  in  his  Law  of  Evidence  (8th  ed.  Part  2, 
ch.  15,  s.  872),  "Before  any  confession  can  be  received  in  evidence 
in  a  criminal  case,  it  must  be  shewn  to  have  been  voluntarily  made; 
for,  to  adopt  the  somewhat  inflated  language  of  Eyre,  C.  B.,  'a  con- 
fession forced  from  the  mind  by  flattery  of  hope  or  by  the  torture  of 
fear,  comes  in  so  questionable  a  shape,  when  it  is  to  be  considered 
as  the  evidence  of  guilt,  that  no  credit  ought  to  be  given  to  it,  and 
therefore,  it  is  rejected:'  Warickshall's  Case,  (i)  The  material 
question  consequently  is  whether  the  confession  has  been  obtained 
by  the  influence  of  hope  or  fear ;  and  the  evidence  of  this  point  being 
in  its  nature  preliminary,  is  addressed  to  the  judge,  who  will  require 
the  prosecutor  to  show  affirmatively,  to  his  satisfaction,  that  the 
statement  was  not  made  under  the  influence  of  an  improper  induce- 
ment, and  who,  in  the  event  of  any  doubt  subsisting  on  this  head, 
will  reject  the  confession." 

In  the  present  case  the  magistrates  appear  to  have  intended  to 
state  the  evidence  which  was  before  them,  and  to  ask  our  opinion 
whether  on  that  evidence  they  did  right  in  admitting  the  confession. 
Now  there  was  obviously  some  ground  for  suspecting  that  the  con- 
fession might  not  have  been  free  and  voluntary;  and  the  question  i^ 
whether  the  evidence  was  such  as  ought  to  have  satisfied  their  minds 


Admissions  and  Confessions  187 

that  it  was  free  and  voluntary.  Unfortunately,  in  my  judgment,  the 
magistrates  do  not  seem  to  have  understood  what  the  precise  point  to 
be  determined  was,  or  what  evidence  was  necessary  to  elicit  it.  The 
new  evidence  now  before  us  throws  a  strong  light  on  what  was  the 
object  of  the  interview  between  Mr.  Crewdson  and  the  prisoner's 
brother  and  brother-in-law,  why  he  made  any  communication  to  them, 
and  why  he  expected  that  what  he  said  would  be  communicated  to  the 
prisoner.  There  is,  indeed,  no  evidence  that  any  communication  was 
made  to  the  prisoner  at  all ;  but  it  seems  to  me  that  after  Mr.  Crewd- 
son's  statement,  that  he  had  spoken  to  the  prisoner's  brother  and 
brother-in-law  about  the  desirability  of  the  prisoner  making  a  clean 
breast  of  it,  with  the  expectation  that  what  he  had  said  would  be  com- 
municated to  the  prisoner,  it  was  incumbent  on  the  prosecution  to 
prove  whether  any  and  if  so,  what  communication  was  actually  made 
to  the  prisoner,  before  the  magistrates  could  properly  be  satisfied 
that  the  confession  was  free  and  voluntary. 

The  magistrates  go  on  to  say  that  they  inferred  that  the  details 
of  the  interview  would  be,  by  which  I  suppose  they  intend  to  say  that 
they  inferred  they  were,  communicated  to  the  prisoner,  which  seems 
to  have  been  the  right  inference  to  draw  under  the  circumstances. 
They  add  that  they  found,  as  a  fact,  that  the  statements  made  by 
Crewdson  were  calculated  to  elicit  the  truth,  and  that  the  confession 
was  voluntary.  The  first  of  these  findings,  if  the  ruling  of  Pollock, 
C.  B.,  in  Reg.  v.  Baldry  (i)  is,  as  I  take  it  to  be,  correct,  is  entirely 
immaterial.  The  second  finding,  if  it  is  a  corollary  from  the.  first, 
does  not  follow  from  it,  and  if  it  is  an  independent  finding,  is  not 
warranted  by  the  evidence;  and,  as  the  question  for  us  is  whether 
this  finding  was  warranted  by  the  evidence,  I  feel  compelled  to  say 
that  in  my  judgment  it  was  not.  Taking  the  words  of  Mr.  Crewdson 
to  have  been,  "It  will  be  the  right  thing  for  Marcellus  to  make  a  state- 
ment," and  that  those  words  were  communicated  to  the  prisoner,  I 
should  say  that  the  communication  was  calculated  in  the  language 
of  Pollock,  C.  B.,  to  lead  the  prisoner  to  believe  that  it  would  be 
better  for  him  to  say  something.  All  this,  however,  is  matter  of  con- 
jecture; and  I  prefer  to  put  my  judgment  on  the  ground  that  it  is  the 
duty  of  the  prosecution  to  prove,  in  case  of  doubt,  that  the  prisoner's 
statement  was  free  and  voluntary,  and  that  they  did  not  discharge 
themselves  of  this  obligation. 

I  would  add  that  for  my  part  I  always  suspect  these  confessions, 
which  are  supposed  to  be  the  offspring  of  penitence  and  remorse,  and 
which  nevertheless  are  repudiated  by  the  prisoner  at  the  trial.     It 


1 88  Cases  on  ETvidence 

is  remarkable  that  it  is  of  very  rare  occurrence  for  evidence  of  a 
confession  to  be  given  when  the  proof  of  the  prisoner's  giiilt  is  other- 
wise clear  and  satisfactory;  but  when  it  is  not  clear  and  satisfactory, 
the  prisoner  is  not  un  frequently  alleged  to  have  been  seized  with  the 
desire  bom  of  penitence  and  remorse  to  supplement  it  with  a  con- 
fession;— a  desire  which  vanishes  as  soon  as  he  appears  in  a  court 
of  justice.  In  this  particular  case  there  is  no  reason  to  suppose  that 
Mr.  Crewdson's  evidence  was  not  perfectly  true  and  accurate;  but, 
on  the  broad,  plain  ground  that  it  was  not  proved  satisfactorily  that 
the  confession  was  free  and  voluntary,  I  think  it  ought  not  to  have 
been  received.  In  my  judgment  no  other  principle  can  be  safely  worked 
by  magistrates. 
Lord  Coleridge,  C.  J.,  Hawkins,  Day  and  Wills,  JJ.,  concurred. 

Conviction  quashed. 


STATE  V.  RUSH. 
P5  Mo.  ipp.     (1888) 


BjiACE,  J.  The  defendant  was  jointly  indicted  in  the  Circuit  Court 
of  Jasper  County  with  one  Seth  Beard  for  the  crime  of  robbery  in 
the  first  degree,  and  on  his  motion  was  granted  a  separate  trial;  his 
motion  to  quash  the  indictment  having  been  overruled,  he  was  tried, 
found  guilty,  and  his  punishment  assessed  at  imprisonment  in  the 
penitentiary  for  a  term  of  ten  years,  and  he  was  sentenced  accord- 
ingly; his  motion  for  new  trial  and  in  arrest  of  judgment  having 
been  overruled  he  appealed,  and  assigns  for  error  that  the  court 
overruled  his  motion  to  quash  the  indictment,  admitted  incompetent 
evidence,  refused  proper  and  gave  improper  instnictions,  failed  to 
declare  all  the  law  of  the  case,  and  refused  to  grant  a  new  trial  for 
the  improper  conduct  of  the  sheriff  and  jury. 

Sheriff  Bailey,  sworn  as  a  witness  on  behalf  of  the  state,  was  per- 
mitted, over  the  objections  of  the  defendant,  to  testify  to  a  conver- 
sation he  had  with  the  defendant  in  which  he  made  certain  crim- 
inating admissions,  after  answering  the  following  preliminary  ques- 
tions: Q.  "Did  you  have  the  defendant  in  your  custody  at  that  time? 
A.  Yes."  Q.  "Was  that  confession  about  getting  the  money  from 
Pirtle  made  after  you  had  told  Rush  that  Seth  Beard  had  given  him 
away?    A.     Yes."    E.  S.  Pike,  who  arrested  the  defendant  in  Kan- 


Admissions  and  Confessions  189 

sas  and  brought  him  back  to  Jasper  county,  was  present  at  the  same 
conversation  and  testified  in  regard  to  it.  He  was  also  permitted  to 
testify,  over  the  objection  of  the  defendant,  to  the  following  con- 
versation had  with  defendant  on  the  way  back :  "I  told  him  I  was 
satisfied  that  he  was  connected  with  the  case,  and  he  said  he  was  not 
guilty  himself,  but  knew  who  was."  These  admissions  of  the  de- 
fendant were  made  to  an  officer  having  him  in  custody,  but  it  appear- 
ing that  they  were  not  induced  by  any  promise  of  benefit  or  favor, 
or  threat  or  disfavor,  or  intimidation,  connected  with  the  subject  of 
the  charge,  made  or  held  out  by  such  officer,  such  admissions  were 
voluntary  and  admissible  in  evidence.  State  v.  Simon,  50  Mo.  370.  It 
does  not  appear  whether  the  statement  made  by  the  sheriflF,  "that 
Seth  Beard  ,had  given  him  away,"  was  true  or  false,  but  even  if  it 
was  false  and  the  defendant  made  the  admissions  under  the  mis- 
taken supposition  that  the  co-defendant  had  divulged  facts  in  relation 
to  the  crime,  this  would  not  have  rendered  them  inadmissible.  State 
V.  Jones,  54  Mo.  478;  State  v.  Phelps,  74  Mo.  128. 

On  the  whole  record  we  find  no  reversible  error,  and  the  judgment 
is  affirmed.    All  concur. 


DAVIS  V.  COMMONWEALTH. 
95  Ky.  79.  (i8q3) 
Bennett,  C.  J.  The  appellant  having  been  convicted  of  the  crime 
of  murdering  Viona  Pack  by  the  Lawrence  Circuit  Court,  he  appeals 
and  complains  as  follows :  First,  that  the  court  erred  in  not  allowing 
him  to  prove  by  G.  W.  Miller  that  Granville  Pearl  confessed  to  him 
on  his  death-bed  that  he,  Pearl,  killed  Viona  Pack.  It  seems  to  us 
that  admissions  and  confessions  as  to  competency  stand  upon  the 
same  footing.  Admissions  cannot  be  used  in  evidence,  except  against 
the  persons  making  them  in  an  issue  between  him  and  another  per- 
son, wherein  the  truth  of  the  admissions  is  involved,  or  against  his 
privies  claiming  through  him.  And  confessions  are  incompetent  evi- 
dence except  against  a  person  charged  with  crime,  or,  in  a  proper 
state  of  case,  against  his  confederates.  Nor  is  the  proposed  evidence 
competent  as  a  dying  declaration  because  such  evidence  is  only  com- 
petent when  it  comes  from  a  declarant  whose  personal  injuries  by  an- 
other have  resulted  in  death,  and  the  declarations  must  be  confined  to 
tl\e  manner  and  circumstances  of  the  injury  and  to  the  person  that 
did  it. 

Judgment  affirmed. 


iQO  Cases  on  Evidence 

THE  EULE  AGAINST  HEABSAY.i 

MIMA  QUEEN  AND  CHILD  v.  HEPBURN. 
7  Cranch.  (U.  S.)  291.     (1S13) 

Marshall,  Ch.  J.  This  was  a  suit  instituted  by  the  plaintiffs  in  the 
Circuit  Court  of  the  United  States  for  the  County  of  Washington, 
in  which  they  claim  freedom.  On  the  trial  of  the  issue  certain  depo- 
sitions were  offered  by  the  plaintiffs,  which  were  rejected  by  the 
court  and  exceptions  were  taken.  The  verdict  and  judgment  being 
rendered  for  the  defendants,  the  plaintiffs  have  brought  the  cause 
into  this  court  by  writ  of  error,  and  the  case  depends  on  the  correct- 
ness of  the  several  opinions  given  by  the  Circuit  Court. 

The  first  opinion  of  the  court  to  which  exception  was  taken  was  for 
the  rejection  of  part  of  the  deposition  of  Caleb  Clarke,  who  deposed 
to  a  fact  which  he  had  heard  his  mother  say  she  had  frequently  heard 
from  her  father. 

The  second  exception  is  to  the  opinion  overruling  part  of  the  depo- 
sition of  Freeders  Ryland,  which  stated  what  he  had  heard  Mary, 
the  ancestor  of  the  plaintiffs,  say  respecting  her  own  place  of  birth 
and  residence. 

The  fifth  exception  is  substantially  the  same  with  the  second. 

These  several  opinions  of  the  court  depended  on  one  general  prin- 
ciple. The  decision  of  which  determines  them  all.  It  is  this:  That 
hearsay  evidence  is  incompetent  to  establish  any  specific  fact,  which 
fact  is  in  its  nature  susceptible  of  being  proved  by  witnesses  who 
speak  from  their  own  knowledge. 

However  the  feelings  of  the  individual  may  be  interested  on  the 
part  of  a  person  claiming  freedom,  the  court  cannot  perceive  any 
legal  distinction  between  the  assertion  of  this  and  of  any  other  right, 
which  will  justify  the  application  of  a  rule  of  evidence  to  cases  of 
this  description  which  would  be  inapplicable  to  general  cases  in  which 
a  right  to  property  may  be  asserted.  The  rule  then  which  the  court 
shall  establish  in  this  cause  will  not,  in  its  application  be  confined  to 
cases  of  this  particular  description,  but  will  be  extended  to  others 
where  rights  may  depend  on  facts  which  happened  many  years  ago. 

It  was  very  justly  observed  by  a  great  judge  that  "all  questions 
upon  the  rules  of  evidence  are  of  vast  importance  to  all  orders  and 

1  Hughes  on  Evidence,  p.  51. 


The  Rule  Against  Hearsay  191 

degrees  of  men:  our  lives,  our  liberty,  and  our  property  are  all  con- 
cerned in  the  support  of  these  rules,  which  have  been  matured  by  the 
wisdom  of  ages,  and  are  now  revered  from  their  antiquity  and  the 
good  sense  in  which  they  were  founded." 

One  of  these  rules  is,  that  "hearsay"  evidence  is  in  its  own  nature 
inadmissible.  That  this  species  of  testimony  supposes  some  better 
testimony  which  might  be  adduced  in  the  particular  case,  is  not  the 
sole  ground  of  its  exclusion.  Its  intrinsic  weakness,  its  incompetency 
to  satisfy  the  mind  of  the  existence  of  the  fact,  and  the  frauds  which 
might  be  practiced  under  its  cover,  combine  to  support  the  rule  that 
hearsay  evidence  is  totally  inadmissible. 

To  this  rule  there  are  some  exceptions  which  are  said  to  be  as  old 
as  the  rule  itself.  These  are  cases  of  pedigree,  or  prescription  of  cus- 
tom, and  in  some  cases  of  boundary.  There  are  also  matters  of  gen- 
eral and  public  history  which  may  be  received  without  that  full  proof 
which  is  necessary  for  the  establishment  of  a  private  fact. 

It  will  be  necessary  only  to  examine  the  principles  on  which  these 
exceptions  are  founded  to  satisfy  the  judgment  that  the  same  prin- 
ciples will  not  justify  the  admission  of  hearsay  evidence  to  prove  a 
specific  fact,  because  the  eye  witnesses  to  that  fact  are  dead.  But  if 
other  cases  standing  on  similar  principles  should  arise,  it  may  well 
be  doubted  whether  justice  and  the  general  policy  of  the  law  would 
warrant  the  creation  of  new  exceptions.  The  danger  of  admitting  hear- 
say evidence  is  sufficient  to  admonish  courts  of  justice  against  lightly 
yielding  to  the  introduction  of  fresh  exceptions  to  an  old  and  well 
established  rule;  the  value  of  which  is  felt  and  acknowledged  by  all. 

If  the  circumstance  that  the  eye  witnesses  of  any  fact  be  dead 
should  justify  the  introduction  of  testimony  to  establish  that  fact  from 
hearsay,  no  man  could  feel  safe  in  any  property,  a  claim  to  which 
might  be  supported  by  proof  so  easily  obtained. 

This  subject  was  very  ably  discussed  in  the  case  of  the  king  against 
the  inhabitants  of  Eriswell,  where  the  question  related  to  the  fact 
that  a  pauper  had  gained  a  residence,  a  fact  which  it  was  contended 
might  be  proved  by  hearsay  evidence.  In  that  case  the  court  was 
divided,  but  it  was  afterwards  determined  that  the  evidence  was  in- 
admissible. 

This  court  is  of  the  same  opinion. 

The  general  rule  comprehends  the  case,  and  the  case  is  not  within 
any  exception  heretofore  recognized.  This  court  is  not  inclined  to 
extend  the  exceptions   further  than  they  have  already  been  carried. 


192  Cases  on  Evidence 

There  is  no  error  in  the  proceedings  of  the  Circuit  Court  and  the 
judgment  is  affirmed. 

DuvALL,  J.  The  principal  point  in  this  case  is  upon  the  admis- 
sibility of  hearsay  evidence.  The  court  below  admitted  hearsay  evi- 
dence to  prove  the  freedom  of  the  ancestor  from  whom  the  petitioners 
claim,  but  refused  to  admit  hearsay  of  hearsay.  This  court  has  de- 
cided that  hearsay  evidence  is  not  admissible  to  prove  that  the  ances- 
tor from  whom  they  claim  was  free.     From  this  opinion  I  dissent. 

In  Maryland  the  law  has  been  for  many  years  settled  that  on  a 
petition  for  freedom  where  the  petitioner  claims  for  an  ancestor  who 
has  been  dead  for  a  great  length  of  time,  the  issue  may  be  proved 
by  hearsay  evidence,  if  the  fact  is  of  such  antiquity  that  living  tes- 
timony cannot  be  procured.  Such  was  the  opinion  of  the  general 
court  of  Maryland,  and  their  decision  was  affirmed  by  the  unanimous 
opinion  of  the  judges  of  the  High  Court  of  Appeals  in  the  last  resort, 
after  full  argument  by  the  ablest  counsel  at  the  bar.  I  think  the 
decision  was  correct. 

Notes.  The  three  chief  reasons  for  excluding  hearsay  testimony  are, 
(1)  the  original  statement  is  not  made  under  oath;  (2)  no  opportunity  is 
given  the  adverse  party  to  cross-examine  the  person  who  made  the  original 
statement;  (3)  no  opportunity  is  given  the  jury  to  observe  his  demeanor 
when  making  it. 

The  rule  against  hearsay  is  restricted  to  statements  used  testimonially. 
Thus,  In  the  celebrated  Harry  K.  Thaw  murder  case  letters  written  by  Stan- 
ford White,  the  deceased,  to  Thaw's  wife  were  admitted  because  the  purpose 
In  Introducing  them  was  not  testimonial.  It  was  to  show  the  jury  inferen- 
tially  the  effect  of  the  letters  in  producing  in  Thaw's  mind  a  "brainstorm." 

A  few  classes  of  statements  are  characterized  as  exceptions  to  the  rule 
against  hearsay.  They  include  statements  pertaining  to  general  reputation, 
market  values,  what  was  said,  etc.  As  a  general  rule,  however,  these  con- 
stitute original  evidence. 

Several  of  the  so-called  exceptions  to  the  rule  against  hearsay  are  in 
fact  Independent  rules.  Their  origin  antedates  that  of  the  rule  against 
hearsay.  Thus,  account-book  entries  and  entries  made  In  the  regular  course 
of  business  were  held  admissible  in  evidence  long  before  the  rule  against 
hearsay  came  Into  existence. 


Former  Evidence  193 

former  evidence.1 

YALE  V.  COMSTOCK. 
112  Mass.  26/.     (i8ys) 

Complaint  under  the  mill  act.  Trial  in  the  Superior  Court,  before 
Dewey,  J.,  after  a  verdict  for  the  respondent,  allowed  the  complain- 
ant's bill  of  exceptions,  from  which  it  appeared  that  the  complainant 
derived  his  title  by  deed  from  Allen  S.  Yale,  July  31,  1871. 

The  respondent  derived  his  title  by  deed  from  Marshall  Brace, 
Feb.  26,  1868,  and  claimed  a  prescriptive  right  to  maintain  his  dam 
at  the  height  it  was  maintained  during  the  time  covered  by  this  com- 
plaint. 

It  appeared  that  a  mill  and  dam,  for  the  working  of  the  same,  had 
been  maintained,  by  those  under  whom  the  respondent  derived  his 
title,  since  the  year  1843,  on  the  same  site  as  at  present,  and  that 
in  the  year  1863,  Marshall  Brace  being  then  the  owner  of  the  re- 
spondent's dam  and  mill,  and  Allen  S.  Yale  of  the  land  now  owned 
by  the  complainant,  the  dam  was  in  various  respects  altered  and  rebuilt, 
and  a  material  point  in  issue  in  the  present  case  was  whether,  when 
Brace  altered  and  rebuilt  the  dam,  the  new  dam  was  made  higher  than 
the  old  one.    It  was  agreed  that  Brace  had  since  died. 

The  respondent  called  L.  H.  Gamwell,  Esquire,  who  testified  that 
as  a  master  in  chancery,  under  the  order  of  the  Supreme  Judicial 
Court,  he  took  the  testimony  of  various  witnesses  in  the  suits  in 
equity  of  Brace  v.  Yale,  and  Yale  v.  Brace,  99  Mass.  488,  and  that  he 
took  the  testimony  of  Marshall  Brace;  that  the  counsel  of  both  par- 
ties were  present  as  well  as  the  parties  during  the  whole  time;  that 
the  testimony  was  given  in  answer  to  interrogatories  and  cross-inter- 
rogatories, and  taken  in  narrative  form  by  the  consent  of  the  counsel, 
read  to  the  witnesses  carefully,  and  if  any  corrections  were  made 
they  were  entered,  that  after  having  made  such  corrections,  if  any,  he 
made  an  accurate  copy  of  the  part  in  which  corrections  were  made, 
and  connected  it  with  that  part  of  which  no  corrections  were  made; 
that  the  testimony  thus  taken  was  returned  by  him  to  court;  that  he 
could  not  tell  whether  any  corrections  were  made  in  Brace's  testi- 
mony, or  whether  the  paper  was  the  original  one  on  which  he  took 
the  evidence. 


1  Hughes  on  Evidence,  p.  57. 


194  Cases  on  Evidence 

The  respondent  produced  from  the  files  of  the  clerk  the  master's 
report  in  the  cases  of  Brace  v.  Yale  and  Yale  v.  Brace,  and  Gamwell 
identified  it  and  testified  that  he  intended  to  state  the  testimony  of 
Marshall  Brace  in  the  exact  language  used,  and  believed  that  it  was 
so  stated  in  the  report. 

The  papers  in  the  suits  of  Yale  v.  Brace,  and  Brace  v.  Yale  were 
introduced  and  referred  to,  to  show  what  questions  were  in  contro- 
versy between  the  parties  in  the  suit,  and  the  court  being  of  the 
opinion  that  one  of  the  matters  in  controversy  between  Brace  and 
Yale  was  as  to  whether  the  height  of  the  dam  had  been  raised  by 
Brace  in  the  year  1863,  admitted,  against  the  objections  of  the  com- 
plainant, the  evidence  of  Brace's  testimony  upon  the  point,  as  stated 
in  the  report,  and  offered  to  permit  the  complainant  to  introduce  the 
whole  or  any  part  of  the  testimony  of  Brace,  in  addition  to  that  in- 
troduced by  the  respondent. 

Morton,  J.  It  is  an  established  rule  of  law  that  evidence  of  what 
a  deceased  witness  testified  on  a  former  trial  is  competent  in  any 
subsequent  trial  of  the  same  issue,  between  the  same  parties.  And 
privies  in  estate  are  deemed  to  be  the  same  parties  within  this  rule. 
Commonwealth  v.  Richards,  18  Pick.  434.  Warren  v.  Nichols,  6  Met. 
261.  Jackson  v.  Lawson,  15  Johns.  539.  Jackson  v.  Crissey,  3  Wend. 
251.  Under  this  rule  the  presiding  judge  rightly  admitted  evidence 
of  what  Marshall  Brace  testified  in  the  former  trial  of  the  cases  be- 
tween Brace  and  Yale.  The  parties  in  this  suit  derive  their  titles 
respectively  from  said  Yale  and  Brace,  and  as  to  them  are  privies  in 
estate.  The  court  found,  and  it  is  not  disputed,  that  one  of  the  issues 
in  the  former  suits  was  the  same  as  one  of  the  issues  in  this  suit. 
Brace  being  dead,  his  testimony  at  the  former  trial  upon  this  issue 
was  competent.  It  has  been  held  with  great  strictness  in  this  Com- 
monwealth, that  the  witness  called  to  prove  what  a  deceased  witness 
testified  in  a  former  trial  must  be  able  to  state  the  language  in  which 
the  former  testimony  was  given  substantially  and  in  all  material  par- 
ticulars.   Warren  v.  Nichols,  ubi  supra. 

It  is  clear  that  the  witness  called  to  prove  the  testimony  of  Brace 
fulfilled  this  condition.  Acting  as  a  master  in  chancery,  he  took  the 
testimony  in  writing,  read  it  carefully  to  the  witness,  and  made  a 
report  thereof  to  the  court.  He  identified  the  report,  and  testified 
that  "he  intended  to  state  the  testimony  of  Marshall  Brace  in  the 
exact  language  of  said  Brace,  and  believed  that  it  was  so  stated  in 
said  report."  No  case  could  arise,  except  that  of  a  deposition  signed 
by  the  witness,  in  which  more  satisfactory  guarantees  could  be  fur- 


FoRMilR  Evidence  195 

nished  that  the  exact  testimony  of  the  deceased  witness  is  laid  before 
the  jury. 

The  point  made  by  the  complainant  at  the  argimient,  that  the  ques- 
tion whether  the  witness  could  state  the  exact  testimony  of  Brace 
should  have  been  submitted  to  the  jury,  was  not  raised  at  the  trial, 
is  not  open  upon  this  bill  of  exceptions,  and  need  not  be  considered. 

Exceptions  overruled. 


JACKSON  V.  LAWSON. 
.      15  Johns.  (N.  Y.)  33p.     (1818) 

This  was  an  action  of  ejectment  for  a  farm  in  Poughkeepsie,  in 
the  county  of  Dutchess.  The  cause  was  tried  before  Mr.  J.  Van 
Ness,  at  the  Dutchess  Circuit,  in  August,  181 7. 

On  the  trial,  John  C.  Brower,  a  witness  on  the  part  of  the  plaintiff, 
testified,  that  he  knew  William  Lawson.  the  father  of  Peter  Law- 
son,  and  the  grandfather  of  the  defendant;  that  W.  Lawson  died  in 
possession  of  the  premises  in  question  in  July,  1791 ;  that  the  defend- 
ant was  in  possession  of  about  fifty  or  sixty  acres  of  land,  the  prem- 
ises in  question,  which  the  defendant  recovered  in  an  action  of  eject- 
ment against  the  witness,  and  Elizabeth  Lawson,  widow  of  W. 
Lawson,  and  that  he  went  into  possession  by  virtue  of  that  recovery, 
seventeen  or  eighteen  years  before  the  trial,  and  had  continued  in 
possession  ever  since;  that  when  W.  Lawson  died,  he  left  his  widow, 
Elizabeth,  who  is  since  dead,  in  possession;  and  that  Peter  Lawson 
had  possessed  the  farm  for  a  long  time  previous  to  his  death,  and 
the  witness  always  understood  that  he  bought  the  farm  of  his  father 
W.  Lawson. 

The  defendant  gave  in  evidence  the  record  of  a  recovery  in  an 
action  of  ejectment  in  this  court,  for  the  land  in  question,  wherein 
James  Jackson,  on  the  demise  of  John  Lawson,  the  now  defendant, 
was  plaintiff,  and  Elizabeth  Lawson,  the  widow  of  W.  Lawson  and 
John  Brower  were  defendants,  and  which  cause  was  tried  on  the 
14th  of  June,  1797,  before  Morgan  Lewis,  Esq.,  then  one  of  the 
justices  of  this  court,  and  judgment  was  signed  the  4th  of  August, 
1797.  The  defendant  then  offered  to  prove  that  the  lessor  of  the" 
plaintiff  was  present  at  the  trial  in  that  suit;  that  he  was  the  agent 
of  E.  Lawson,  in  preparing  the  defense,  conducting  the  trial,  and 
examining  and  cross-examining  the  witnesses;  and  that  Peter  Dubois, 


196  Gases  on  Evidence 

who  is  since  dead,  was  sworn  as  a  witness  at  that  trial,  on  the 
part  of  the  then  plaintiflF,  and  testified,  in  the  hearing  and  presence 
of  the  lessor  in  this  suit,  that  he  surveyed  the  premises  in  question  on 
the  14th  of  Feb,  1769,  at  the  request  of  P.  Lawson,  and  his  father, 
William,  and  drew  a  deed  in  fee  simple  from  William  to  Peter,  and 
a  bond  from  Peter  to  William  for  the  purchase  money,  and  that 
William  told  the  witness,  some  months  afterwards,  that  he  had  con- 
veyed the  premises  to  his  son,  and  was  afraid  that  he  would  not  be 
able  to  pay  the  residue  of  the  consideration  money.  This  testimony 
was  objected  to,  and  excluded  by  the  judge.  The  jury  found  a  verdict 
for  the  plaintiflF,  which  the  defendant  now  moved  to  set  aside,  for  a 
new  trial,  on  the  grounds,  i.  That  the  verdict  was  qpntrary  to  evi- 
dence; and,  2.    That  the  judge  had  rejected  proper  testimony. 

Van  Ness,  J.,  delivered  the  opinion  of  the  court. 

The  first  question  I  shall  consider  is,  whether  the  testimony  given 
by  Dubois  in  the  action  of  ejectment  brought  by  the  present  defend- 
ant against  the  widow  of  William  Lawson  and  Brower,  and  in  which 
the  then  plaintiff  had  judgment  in  1787,  was  properly  rejected  or  not. 
By  the  will  of  William  Lawson,  he  devised  all  his  estate  to  his 
wife  during  her  widowhood,  with  remainder  to  certain  of  his  chil- 
dren, part  of  whose  estate  the  now  lessor  of  the  plaintiff  purchased 
in  1791.  Both  the  widow  of  William  Lawson,  and  the  lessor  of  the 
plaintiflF,  thus  claim  under  the  same  will;  and  I  am  inclined  to  think, 
that  there  is  such  a  privity  of  estate  between  them,  and  the  verdict 
in  that  case  was,  for  certain  purposes,  evidence  (though  not  conclus- 
ive) in  this.  It  was  evidence,  at  least,  to  lay  the  foundation  for 
admitting  the  testimony  given  by  Dubois,  more  especially  as  the  lessor 
of  the  plaintiflF,  in  point  of  fact,  had  notice  of,  and  defended  the 
former  ejectment;  was  present  at  the  trial,  and  had  an  opportunity 
of  cross-examining  the  witnesses,  though  I  lay  no  particular  stress 
on  these  latter  facts.  The  estate  devised  to  the  widow  during  her 
widowhood,  and  the  remainder  over,  constitute  but  one  estate  carved 
out  of  the  same  inheritance,  created  and  subsisting  together,  the  one 
in  possession,  the  other  in  expectancy.  An  estate  in  remainder  is  a 
present  interest,  though  to  be  enjoyed  in  the  future,  and  is  capable  of 
being  aliened,  devised,  and  otherwise  disposed  of,  in  the  same  man- 
ner as  an  estate  in  possession.  The  possession  of  the  widow  was, 
for  certain  purposes,  the  jjossession  of  the  remainder  men,  and  the 
entry  of  the  present  defendant,  under  the  recovery  in  the  ejectment, 
was  a  prejudice  to  those  in  remainder,  for,  in  consequence  of  it,  the 
estate  in  remainder  has  become  a  right  in  action  only.     The  lessor 


Former  Evidence  197 

of  the  plaintiff  had  an  interest  in  defeating  the  recovery,  and  his 
right  was  so  interwoven  with  that  of  the  widow,  that  the  evidence  of 
Dubois  affected  the  one  almost  equally  with  the  other.  My  attention 
was  not  called  to  this  view  of  the  subject  at  the  trial;  and  the  fact 
that  the  present  lessor  of  the  plaintiff  had  purchased  part  of  the  estate 
in  remainder  before  the  trial  in  1797,  was  overlooked;  and  the  counsel 
for  the  defendant  put.  the  admissibility  of  the  testimony  offered,  on 
the  ground  that  the  lessor  of  the  plaintiff  was  the  agent  of  the  widow, 
and  present  at  the  trial.  It  was  held  by  Ch.  J.  Holt,  "that  if  several 
estates  in  remainder  be  limited  in  a  deed,  and  one  of  the  remainder 
men  obtains  a  verdict  for  him,  in  an  action  brought  against  him  for 
the  same  land,  that  verdict  may  be  given  in  evidence  for  the  sub- 
sequent man  remainder  in  action  brought  against  him  for  the  same 
lands,  though  he  does  not  claim  any  estate  under  the  first  remainder 
man,  because  they  all  claim  under  the  same  deed."  Pike  v.  Crouch 
(i  Lord  Raym.  730.) 

If  the  verdict  in  the  former  ejectment  was  admissible  on  the  trial 
of  the  suit,  by  reason  that  the  tenant  for  life  and  the  remainder 
men  are  privies  in  estate,  it  follows,  that  the  evidence  given  in  the 
first  suit  by  a  deceased  witness,  is  also  admissible.  The  rule  is,  that 
such  evidence  is  proper,  not  only  when  the  point  in  issue  is  the 
same  in  a  subequent  suit  between  the  same  parties,  but  also  for  or 
against  persons  standing  in  the  relation  of  privies  in  blood,  privies 
in  estate  or  privies  in  law.  On  this  ground,  the  defendant  is  entitled 
to  a  new  trial;  though,  independently  of  this,  I  think  a  new  trial 
ought  to  be  granted  on  the  other  grounds  taken  in  the  argument,  that 
the  verdict  is  against  the  weight  of  evidence.  The  proof  of  a  con- 
veyance by  William  Lawson,  in  his  lifetime,  to  his  son  Peter,  is  very 
clear  and  satisfactory. 

New  trial  granted  with  costs  to  abide  the  event.  • 


CORNELL  V.  GREEN. 

10  S.  &  R.  (Pa.)  16.     (1823) 

Error  to  the  Court  of  Common  Pleas  of  Dauphin  County,  in  an 
ejectment,  brought  by  the  plaintiff  below,  Innis  Green,  administrator 
Cum  Testamento  annexo,  of  Robert  McCord,  deceased,  against 
Thomas   D.   Cornell,   James   Armstrong  and  John    Sawyer,   the   de- 


198  Cases  on  Evidence 

fendants  below,  in  which  a  verdict  and  judgment  were  rendered  in 
favor  of  the  plaintiff. 

Exceptions  were  taken  by  the  defendants  below,  on  the  opinion 
of  the  court  on  points  of  evidence,  and  also  to  their  charge. 

Gibson,  J.  After  the  plaintiff  had  opened  his  rebutting  evidence, 
he  offered  Mr.  Fisher,  who  was  of  counsel  in  the  cause,  to  prove  what 
had  been  sworn  on  a  former  trial  by  a  witness  since  deceased.  On 
being  examined  as  to  the  state  of  his  recollection,  Mr.  Fisher  tes- 
tified that  "from  having  been  consulted  before  the  suit  was  insti- 
tuted, and  having  directed  to  be  done,  what  the  witness  in  the  former 
trial  swore  was  done ;  as  well  from  frequently  having  recurred  to  his 
notes  of  the  witness's  testimony,  as  from  conversations  with  him  be- 
fore the  trial  came  on;  he  had  a  perfect  recollection  of  what  the  wit- 
ness swore;  that  he  would  not,  however,  pretend  to  say  without  a 
previous  knowledge  of  all  these  facts,  what  the  witness  did  or  did 
not  swear ;  that  he  is  in  the  habit  of  taking  down  the  very  words  of  a 
witness,  and  not  the  substance  of  his  testimony ;  and  that  to  the  best 
of  his  knowledge,  his  notes  contain  every  word  said  by  the  witness 
on  the  occasion."  Mr.  Fisher  added,  "that  conversant  as  he  was  with 
the  cause,  without  frequently  recurring  to  his  notes,  he  would  not 
undertake  to  state  every  word  said  by  the  witness,  but  that  the  ma- 
terial part  of  what  he  had  said  he  could  state  without  recurring  to 
his  notes."  The  defendants  then  objected  to  Mr.  Fisher's  compe- 
tency to  prove  the  matters  proposed ;  but  the  court  admitted  him  and 
sealed  a  bill  of  exceptions.  I  confess  I  cannot  see  any  reason  for  the 
rule  stated  in  Mr.  Phillipp's  treatise,  that  a  person  called  to  prove 
what  a  deceased  witness  had  said,  must  undertake  to  repeat  his  very 
words,  and  not  merely  to  swear  to  their  effect.  The  rule  applied  with 
that  degree  of  strictness,  would  be  altogether  useless  in  practice  for 
there  is  no  man,  be  his  powers  of  recollection  what  they  may,  who 
could  in  one  case  picked  out  of  ten  thousand,  be  qualified  to  give 
such  evidence;  and  if  he  should  undertake  to  swear  positively  to  the 
very  words,  the  jury  ought  on  that  account  alone  to  disbelieve  him. 
The  reason  assigned,  that  the  jury  and  not  the  witness  is  to  judge 
of  the  effect,  is  more  plausible  than  sound.  It  is  a  good  general  rule 
that  a  witness  is  not  to  give  his  impressions,  but  to  state  the  facts 
from  which  he  received  them,  and  thus  leave  the  jury  to  draw  their 
own  conclusion;  and  wherever  the  facts  can  be  stated,  it  is  not  to  be 
departed  from.  But  every  man  must  judge  of  external  objects  ac- 
cording to  the  impressions  they  make  on  his  senses;  and  after  all, 
when  we  come  to  speak  of  the  most  simple  fact  which  we  have  wit- 


Former  Evidence  I99 

nessed,  we  are  necessarily  guided  by  our  impressions.  There  are 
cases  where  a  single  impression  is  made  by  induction  from  a  number 
of  others;  as,  where  we  judge  whether  a  man  is  actuated  by  passion, 
we  are  determined  by  the  expression  of  his  countenance,  the  tone  of 
his  voice,  his  gestures,  and  a  variety  of  other  matters;  yet  a  witness 
speaking  of  such  a  subject  of  inquiry,  would  be  permitted  directly 
to  say  whether  the  man  was  angry  or  not.  I  trust  this  will  not  be 
considered  as  refining  too  much,  when  it  is  considered  that  the  sub- 
tlety is  in  the  subject,  and  not  in  the  manner  of  treating  it.  I  take  it, 
that  whereever  the  facts  from  which  a  witness  received  an  impression 
are  too  evanescent  in  their  nature  to  be  recollected,  or  are  too  com- 
plicated to  be  separated  and  distinctly  narrated,  his  impressions  from 
these  facts  become  evidence;  and  this  on  the  ground  that  it  is  the 
,best  evidence  of  which  the  nature  of  the  case  is  susceptible.  Now 
the  meaning  of  a  witness  often  depends  not  much  less  on  his  em- 
phasis, gestures,  and  even  the  expression  of  his  countenance,  than  on 
the  particular  words  he  utters;  and  the  superior  value  of  viva  voce 
evidence  in  the  presence  of  the  jury,  depends  altogether  on  this;  yet 
no  one  will  pretend  that  a  by-stander  who  is  unable  minutely  to  de- 
scribe all  these,  may  not  be  heard.  The  truth  is,  that  evidence  of 
what  a  deceased  witness  said,  being  inferior  in  its  nature  to  a  per- 
sonal examination  before  the  jury,  is  admissible  only  from  necessity 
and  on  the  ground  that  better  evidence  does  not  remain  behind,  the 
jury  being  left  to  form  their  own  judgment  of  the  accuracy  of  the 
narration.  I  cannot  therefore  see  why  the  same  necessity  which  opens 
the  way  for  secondary  evidence  of  the  very  words  of  a  deceased  wit- 
ness, should  not  open  the  way  also  for  the  substance  of  his  testimony 
when  his  very  words  cannot  be  recollected;  or  discover  the  policy  of 
a  rule  which  should  shut  out  the  little  light  that  is  left,  when  it  is 
all  that  is  left,  merely  because  it  may  not  be  sufficient  to  remove  every 
thing  like  obscurity.  But  even  where  written  notes  of  the  evidence 
of  a  deceased  witness  are  produced,  it  is  sufficient  to  prove  by  the 
person  who  made  them  that  they  contain  the  true  substance  of  what 
was  said.  Miles  v.  O'Hara,  4  Binn.  108.  For  these  reasons,  I  am 
of  opinion  that  Mr.  Fisher  was  competent  to  testify  to  what  the  wit- 
ness had  sworn.  It  seems,  however,  singular  that  instead  of  trusting 
to  Mr.  Fisher's  recollection,  the  plaintiff  did  not  offer  his  notes  in 
evidence  against  which,  when  properly  authenticated,  there  could  be 
no  sort  of  objection. 

Judgment  affirmed. 


200  Cases  on  Evidence 

WARREN  et  al.  v.  NICHOLS. 
47  Mass.  261.     (1843) 

Trespass  for  breach  and  entry  of  the  plaintiffs'  close  by  the  de- 
fendant's horses  and  sheep.     *     ♦     * 

Shaw,  C,  J.  The  jury  in  this  action,  v/hich  is  trespass  quare 
clausam  fregit,  having  returned  a  verdict,  that  the  alleged  trespass 
was  casual  and  involuntary,  and  assessed  the  damages  at  $12,  and  it 
appearing  that  $12  had  been  tendered  as  damages,  before  the  action 
was  brought,  the  defendant  moves  for  judgment.  This  is  opposed  by 
the  plaintiffs,  who  move  for  a  new  trial  on  the  grounds  stated  in  the 
report.  The  principal  one  is,  that  the  testimony  of  Oliver  Luce,  as  to 
what  a  deceased  witness,  Brown,  had  formerly  testified,  in  this  cause, 
in  the  Court  of  Common  Pleas,  and  which  was  tendered  by  the  plain- 
tiffs, ought  to  have  been  received. 

The  rule  upon  which  evidence  may  be  given  of  what  a  deceased 
witness  testified  on  a  former  trial  between  the  same  parties,  in  a  case 
where  the  same  question  was  in  issue,  seems  now  well  established 
in  this  Commonwealth  by  authorities.  It  was  fully  considered  in  the 
case  of  Commonwealth  v.  Richards,  18  Pick.  434.  The  principle 
on  which  this  rule  rests  was  accurately  stated,  the  cases  in  support  of 
it  were  referred  to,  and  with  the  decision  of  which  we  see  no  cause 
to  be  dissatisfied.  The  general  rule  is,  that  one  person  cannot  be 
heard  to  testify  as  to  what  another  person  has  declared,  in  relation 
to  a  fact  within  his  knowledge,  and  bearing  upon  the  issue.  It  is 
the  familiar  rule  which  excludes  hearsay.  The  reasons  are  obvious, 
and  they  are  two.  First,  because  the  averment  of  fact  does  not  come 
to  the  jury  sanctioned  by  the  oath  of  the  party  on  whose  knowledge 
it  is  supposed  to  rest;  and  secondly,  because  the  party,  upon  whose 
interests  it  is  brought  to  bear,  has  no  opportunity  to  cross-examine 
him  on  whose  supposed  knowledge  and  veracity  the  truth  of  the  fact 
depends. 

Now,  the  rule,  which  admits  evidence  of  what  another  said  on  a 
former  trial,  must  effectually  exclude  both  of  these  reasons.  It  must 
have  been  testimony,  that  is,  the  affirmation  of  some  matter  of  fact, 
under  oath ;  it  must  have  been  in  a  suit  between  the  same  parties 
in  interest,  so  as  to  make  it  sure  that  the  party,  against  whom  it  is 
now  offered,  had  an  opportunity  to  cross-examine;  and  it  must  have 
been  upon  the  same  subject-matter,  to  show  that  his  attention  was 
drawn  to  points  now  deemed  important.     It  must  be  the  same  testi- 


Former  Evidence  201 

mony  which  the  former  witness  gave,  because  it  comes  to  the  jury 
imder  the  sanction  of  his  oath,  and  the  jury  are  to  weigh  the  testi- 
mony and  judge  of  it,  as  he  gave  it.  The  witness,  therefore,  must 
be  able  to  state  the  language  in  which  the  testimony  was  given,  sub- 
stantially and  in  all  material  particulars,  because  that  is  the  vehicle, 
by  which  the  testimony  of  the  witness  is  transmitted,  of  which  the 
jury  are  to  judge. 

If  it  were  otherwise,  the  statement  of  the  witness,  which  is  offered, 
would  not  be  of  the  testimony  of  the  former  witness;  that  is,  of  the 
ideas  conveyed  by  the  former  witness  in  the  language  in  which  he 
embodied  them;  but  it  would  be  a  statement  of  the  present  witness's 
understanding  and  comprehension  of  those  ideas,  expressed  in  lan- 
guage of  his  own.  Those  ideas  may  have  been  misunderstood,  modi- 
fied, perverted  or  colored,  by  passing  through  the  mind  of  the 
witness,  by  his  knowledge  or  ignorance  of  the  subject,  or  the  language 
in  which  the  testimony  was  given,  or  by  his  own  prejudices,  predilec- 
tions or  habits  or  thought  and  reasoning.  To  illustrate  this  distinction, 
as  we  understand  it  to  be  fixed  by  the  cases :  If  a  witness,  remarkable 
for  his  knowledge  of  law  and  his  intelligence  on  all  other  subjects,  of 
great  quickness  of  apprehension  and  power  of  discrimination,  should 
declare  that  he  could  give  the  substance  and  effect  of  a  former  wit- 
ness's testimony,  but  could  not  recollect  his  language,  we  suppose 
he  would  be  excluded  by  the  rule.  But  if  one  of  those  remarkable 
men  should  happen  to  have  been  present,  of  great  stolidity  of  mind, 
upon  most  subjects,  but  of  extraordinary  tenacity  of  memory  for  lan- 
guage, and  who  could  say  that  he  recollected  and  could  repeat  all  the 
words  uttered  by  the  witness ;  although  it  should  be  very  manifest  that 
he  himself  did  not  understand  them,  yet  his  testimony  would  be  ad- 
missible. 

The  witness  called  to  prove  former  testimony  must  be  able  to  sat- 
isfy one  other  condition,  namely,  that  he  is  able  to  state  all  that 'the 
witness  testified  on  the  former  trial,  as  well  upon  the  direct  as  the 
cross-examination.  The  reason  is  obvious.  One  part  of  his  state- 
ment may  be  qualified,  softened  or  colored  by  another.  And  it  would 
be  of  no  avail  to  the  party  against  whom  the  witness  is  called  to 
state  the  testimony  of  the  former  witness,  that  he  has  had  the  right 
and  opportunity  to  cross-examine  that  former  witness,  with  a  view  of 
diminishing  the  weight  or  impairing  the  force  of  that  testimony 
against  him,  if  the  whole  and  entire  result  of  that  cross-examination 
does  not  accompany  the  testimony.  It  may  perhaps  be  said,  that, 
with  these  restrictions,  the  rule  is  of  little  value.    It  is  no  doubt  true, 


202  Cases  on  Evidence 

that  in  most  cases  of  complicated"  and  extended  testimony  the  loss 
of  evidence  by  the  decease  of  a  witness  cannot  be  avoided.  But  the 
same  result  follows,  in  most  cases,  from  the  decease  of  a  witness, 
whose  testimony  has  not  been  preserved  in  some  of  the  modes  pro- 
vided by  law.  But  there  are  some  cases,  in  which  the  rule  can  be 
usefully  applied,  as  in  case  of  testimony  embraced  in  a  few  words — 
such  as  proof  of  demand  or  notice  on  notes  or  bills — cases  in  which 
large  amounts  are  often  involved.  If  it  can  be  used  in  a  few  cases, 
consistently  with  the  true  and  sound  principles  of  the  law  of  evidence, 
there  is  no  reason  for  rejecting  it  altogether.  At  the  same  time,  care 
should  be  taken  so  to  apply  and  restrain  it,  that  it  may  not,  under 
a  plea  of  necessity,  and  in  order  to  avoid  hard  cases,  be  so  used  as 
to  violate  those  principles.  It  is  to  be  recollected  that  it  is  an  ex- 
ception to  a  general  rule  of  evidence  supposed  to  be  extremely  im- 
portant and  necessary;  and  unless  a  case  is  brought  fully  within  the 
reasons  of  such  exception,  the  general  rule  must  prevail. 

I  am  aware  that  Mr.  Greenleaf,  in  his  learned  and  very  excellent 
Treatise  on  Evidence,  sec.  165,  has  intimated  a  doubt  whether  it  is 
wise  to  hold  the  rule  in  question  with  this  strictness ;  and  the  cases 
from  the  Pennsylvania  Reports  justify  the  suggestion,  and  warrant  a 
more  liberal  construction  of  the  rule,  so  far  as  it  is  practised  in 
that  State.  But  Mr.  Greenleaf  does  not  cite  the  case  of  Common- 
wealth V.  Richards,  18  Pick.  434,  and  probably  he  had  not  adverted 
to  it,  when  his  treatise  was  written.  That  is  a  recent  case,  and  one 
which  we  are  bound  to  regard  as  of  high  authority  in  this  Common- 
wealth. 

The  rule  in  regard  to  proving  what  a  witness  formerly  testified, 
on  a  prosecution  for  perjury,  does  not  seem  to  be  strictly  analogous. 
There,  if  it  is  proved  by  a  witness,  that  the  party  now  on  trial  for- 
merely  testified  positively  to  a  fact,  and  did  not  afterwards,  in  the 
course  of  his  testimony,  retract  or  modify  that  statement;  on  proof 
that  the  matter,  thus  testified  as  a  fact,  was  not  true,  and  the  wit- 
ness knew  it,  the  perjury  assigned  may  be  considered  well  proved, 
although  the  accused  testified  to  many  other  things,  on  the  same  trial, 
which  the  witness  now  called  does  not  recollect,  and  which  perhaps 
would  be  irrelevant,  if  he  could.  But  the  cases,  we  think,  stand  on 
different  grounds.    Rex  v.  Rowley,  i  Mood.  Cr,  Cas.  iii. 

All  that  the  witness  could  state,  in  the  present  case,  was,  that 
he  could  give  the  substance  of  the  witness's  testimony,  but  not 
his  precise  language.  We  lay  no  stress  upon  the  epithet  "precise." 
It  might  properly  lead  to  a  further  preliminary  examination  of  the 


Former  Evidence  203 

extent  of  his  knowledge  and  probably  did  so.  As  he  could  only  give 
the  substance  and  effect  of  the  testimony,  buf*  not  the  language  in 
which  it  was  given,  we  think  the  judge  did  right  in  excluding  him. 

Judgment  for  the  defendant  for  his  costs. 


JACKSON  V.  STATE. 
81  Wis.  127.     (i8p2) 

Cassoday,  J,  It  appears  that  there  was  a  former  trial  of  this  case, 
and  the  jury  disagreed.  Upon  that  trial  the  complaining  witness, 
William  Summers,  was  examined  as  a  witness  on  the  part  of  the 
state,  and  cross-examined  on  the  part  of  the  accused.  After  that  trial, 
and  before  the  last  trial,  that  witness  had  died  and  his  testimony,  as 
taken  by  the  stenographer  on  the  former  trial,  was  admitted  in  evi- 
dence upon  this  last  trial  against  objection.  It  is  claimed  that  such 
ruling  was  an  infringement  of  a  right  secured  to  the  accused  by  that 
clause  of  the  constitution  of  this  state  which  declares  that  "in  all 
criminal  prosecutions  the  accused  shall  enjoy  the  right  to  meet  the 
witnesses  face  to  face."     Sec.  7,  art.  I. 

This  language  is  quite  similar  to  that  contained  in  art.  VI  of 
the  amendments  to  the  constitution  of  the  United  States.  In  State  v. 
Cameron,  2  Pin.  499,  Stow,  C.  J.,  said:  "The  trial  by  jury,  as  it 
existed  of  old,  is  the  trial  by  jury  secured  by  our  national  and  state 
constitutions.  It  is  not  granted  by  these  instruments ;  it  is  more — it 
is  secured.  It  is  no  American  invention.  Our  fathers  brought  it 
with  them  to  this  country  more  than  two  centuries  ago,  and  by  making 
it  a  part  of  the  constitution  they  intended  to  perpetuate  it  for  their 
posterity,  and  neither  legislatures  nor  courts  have  any  power  to  in- 
fringe even  the  least  of  its  privileges."  That  language  is  quoted 
approvingly  by  Ryan,  C.  J.  in  In  re  Bldred,  46  Wis.  553. 

Thus  it  appears  that  the  right  of  the  accused  to  meet  the  witnesses 
face  to  face  was  not  granted,  but  secured,  by  the  constitutional  clauses 
mentioned.  It  is  the  right,  therefore,  as  it  existed  at  common  law 
that  was  thus  secured.  That  right  was  subject  to  certain  exceptions. 
One  of  these  exceptions  was  that  the  declarations  of  a  murdered 
person,  made  when  he  was  at  the  point  of  death  and  every  hope  of 
this  world  gone,  as  to  the  time,  place  and  manner  in  which,  and  the 
person  by  whom,  the  fatal  wound  was  given,  are  admissible  in  evi- 


204  Cases  on  Evidence 

dence,  notwithstanding  such  deceased  person  was  not  sworn  nor 
examined,  much  less  cross-examined.  This  court  has  frequently  held 
that  the  constitutional  clause  quoted  is  no  bar  to  the  admission  in 
evidence  of  such  declarations.  State  v.  Cameron,  2  Pin.  490;  Miller 
V.  State,  25  Wis.  387 ;  State  v.  Martin,  30  Wis.  223 ;  State  v.  Dickin- 
son, 41  Wis.  308.  In  these  cases,  it  is,  in  effect,  said  that  such  rule 
as  to  the  admission  of  such  dying  declarations  was  well  settled  before 
the  adoption  of  our  constitution,  and  that  the  same  was  not  abrogated 
by  the  clause  of  the  constitution  quoted. 

The  testimony  of  a  deceased  witness,  given  upon  a  former  trial, 
would  seem  to  be  admissible  upon  the  same  theory.  "The  chief,  rea- 
sons for  the  exclusion  of  hearsay  evidence,"  says  Mr.  Greenleaf,  "are 
the  want  of  the  sanction  of  an  oath  and  of  any  opportunity  to  cross- 
examine  the  witness.  But  where  the  testimony  was  given  under 
oath,  in  a  judicial  proceeding  in  which  the  adverse  litigant  was  a 
party,  and  where  he  had  the  power  to  cross-examine  and  was  legally 
called  upon  to  do  so,  the  great  and  ordinary  test  of  truth  being  no 
longer  wanting,  the  testimony  so  given  is  admitted,  after  the  decease 
of  the  witness,  in  any  subsequent  suit  between  the  same  parties."  i 
Greenl.  Ev.,  sec.  163.  In  speaking  of  criminal  cases,  Mr.  Cooley  says: 
"If  the  witness  was  sworn  before  the  examining  magistrate,  or  before 
a  coroner,  and  the  accused  had  an  opportunity  then  to  cross-examine 
him,  or  if  there  were  a  former  trial  on  which  he  was  sworn,  it  seems 
allowable  to  make  use  of  his  deposition,  or  of  the  minutes  of  his 
examination,  if  the  witness  has  since  deceased,  or  is  insane,  or  sick 
and  unable  to  testify,  or  has  been  submitted  but  appears  to  have  been 
kept  away  by  the  opposite  party."  Cooley,  Const.  Lim.  (6th  ed.), 
387,  citing  numerous  cases.  The  attorney  general  cites  numerous 
cases  under  similar  constitutional  provisions  to  the  same  effect. 

Of  course,  to  be  admissible,  such  former  testimony  should  be  estab- 
lished or  identified  with  reasonable  certainty.  Here  the  stenographer 
testified,  in  effect  that  while  he  did  not  recollect  the  fact,  yet  that  he 
thinks  he  took  down  all  the  questions  put  to  the  witness,  and  his 
answers,  and  that  he  believed  they  were  substantially  correct.  Coun- 
sel contend  that  this  was  not  sufficient  to  authorize  such  admission 
within  the  rule  of  Zitske  v.  Goldberg,  38  Wis.  216,  and  Elberfeldt  v. 
Waite,  79  Wis.  284.  In  neither  of  those  cases  had  such  testimony 
been  taken  down  by  the  official  court  reporter.  In  each  it  was  taken 
down  by  a  justice  of  the  peace.  In  the  former  it  was  said  by  the 
present  chief  justice  that  "the  minutes  of  testimony  taken  by  a  justice 
of  the  peace  on  a  trial  before  him  are  subjected  to  no  such  scrutiny 


Former  Evidence  205 

(as  in  a  bill  of  exceptions),  and  possess  none  of  tl.ese  important  and 
essential  elements  of  verity.  On  the  contrary,  they  are  made  in  the 
haste  and  confusion  of  trials,  generally  by  men  who  are  quite  unused 
to  the  business  and  no  power  to  make  corrections  after  the  trial  is 
vested  in  any  one.  Hence  the  reasons  for  admitting  such  testimony 
when  it  is  found  in  a  settled  case  or  bill  of  exceptions,  entirely  fail 
'  when  the  offered  testimony  is  contained  in  the  justice's  minutes." 
Mr.  Greenleaf  says  that  "it  was  formerly  held  that  the  person  called 
to  prove  what  a  deceased  witness  testified  on  a  former  trial  must  be 
required  to  repeat  his  precise  xvords,  and  that  testimony  merely  to  the 
effect  of  them  was  inadmissible.  But  this  strictness  is  not  now  in- 
sisted upon  in  proof  of  the  crime  of  perjury;  and  it  has  been  well 
remarked  that  to  insist  upon  it  in  other  cases  goes  in  effect  to  exclude 
this  sort  of  evidence  altogether,  or  to  admit  it  only  where,  in  most 
cases,  the  particularity  and  minuteness  of  the  witness'  narrative,  and 
the  exactness  with  which  he  undertakes  to  repeat  every  word  of  the 
deceased's  testimony,  ought  to  excite  just  doubts  of  his  own  honesty 
and  of  the  truth  of  his  evidence.  It  seems  therefore,  to  be  generally 
considered  sufficient  if  the  witness  is  able  to  state  the  substance  of 
what  was  sworn  on  the  former  trial.  But  he  must  state  in  substance 
the  whole  of  what  was  said  on  the  particular  subject  which  he  is 
called  to  prove."  i  Greenl.  Ev.  sec.  165.  Since  the  proof  of  such 
former  testimony  may  be  different  upon  a  new  trial,  it  becomes  un- 
necessary, in  the  view  we  have  taken  on  the  case,  to  say  more  about 
it  here. 


THE  UNITED  STATES  v.  MACOMB. 

5  McLane's  Rep.  286  (U.  S.  C.  C.)     (1873) 

Drummond,  J.  The  defendant  was  indicted  under  the  21st  and 
22nd  sections  of  the  Post  Office  Act  of  March  3,  1825,  4  Statutes  at 
Large  107-9,  for  stealing  from  the  mail  a  packet  containing  a  land 
warrant  and  fifty  dollars  in  bank  notes.  The  defendant  was  pres- 
ent with  his  counsel  at  the  examination,  during  which  one  Hurl- 
but,  since  deceased,  who  had  enclosed  the  land  warrant  and  bank  notes, 
and  directed  and  posted  the  letter,  testified  as  a  witness  for  the  United 
States. 


2o6  Cases  on  Evidence 

In  this  case  there  was  other  evidence,  independent  of  the  testi- 
mony of  Hurlbut  before  the  committing  officer,  which  might  have 
authorized  the  jury  in  finding  their  verdict ;  but  there  can  be  no  doubt 
that  his  testimony  may  have  had  much  influence  upon  the  jury,  and, 
under  the  circumstances  of  this  case,  I  should  grant  a  new  trial  if 
I  thought  the  testimony  should  have  been  excluded.  After  reflection, 
however,  and  all  the  examination  I  have  been  able  to  give  to  the  sub- 
ject, I  am  of  the  opinion  that  the  ruling  at  the  trial  was  correct. 

The  objection  resolves  itself  into  the  two  following  propositions: 
First.  The  declarations  of  a  deceased  witness  made  at  a  former 
trial  between  the  same  parties,  upon  the  same  subject-matter  can 
never  be  given  in  criminal  cases.  Secondly.  If  they  can  be,  it  is 
only  when  the  persons  who  are  called  on  to  give  the  declarations  of  a 
deceased  witness  can  repeat  the  precise  words  of  the  witness,  and  it 
being  admitted  that  that  was  not  done  here,  the  testimony  ought  to 
have  been   rejected. 

It  is  well  known  that  there  has  long  been  a  difference  of  opinion 
upon  both  these  points. 

It  is  not  controverted  that  the  testimony  of  a  deceased  witness  given 
at  a  former  trial  between  the  same  parties,  in  the  same  issue,  is  ad- 
missible in  civil  cases.  There  seems  no  difference  of  opinion  as  to 
that.  But  sorne  of  the  authorities  &c.,  deny  the  application  of  the  rule 
to  criminal  cases. 

In  the  United  States  v.  Wood,  3  Washing.  C.  C.  R.  440,  which, 
like  this,  was  a  case  of  robbing  the  mail,  though  the  testimony  was 
rejected  because  the  precise  words  could  not  be  given,  no  allusion 
whatever  is  made  to  any  difference  between  civil  and  criminal  cases. 

The  King  v.  Joliffe,  4  T.  R.  290,  in  which  Lord  Kenyon  used  these 
words  in  relation  to  the  rule  which  has  been  since  so  often  quoted, 
was  a  criminal  information,  and  he  speaks  of  no  distinction. 

Most  of  the  modern  elementary  writers,  Phillips,  Starkie,  Roscoe, 
and  Greenleaf  advert  to  the  rule  as  one  of  general  application  in  all 
cases.  And  Russell,  particularly,  in  his  valuable  little  treatise  of  the 
law  of  Evidence,  which  he  has  added  to  his  work  on  Crimes,  says 
expressly,  the  rule  applies  to  criminal  prosecutions,  2  Russ.  683. 


Former  Evidence  207 

PEOPLE  V.  LEM  YOU. 
P7  Cal.  224.     (i8ps) 

McEarland,  J.  Defendant  was  convicted  of  perjury,  and  appeals 
from  the  judgment,  and  from  an  order  denying  a  new  trial. 

It  is  charged  in  the  information  that  the  appellant,  Lem  You,  gave 
certain  false  and  material  testimony  on  the  trial  of  one  Wong  Ark 
for  the  alleged  murder  of  a  woman  named  Goot  Gue,  who  was  shot 
in  or  in  front  of  the  house  in  which  she  lived,  on  the  night  of  April  26, 
1891,  in  the  city  of  Los  Angeles. 

For  the  purpose  of  showing  the  materiality  of  the  alleged  false  tes- 
timony of  appellant,  the  prosecution  offered  evidence  of  the  testimony 
which  two  witnesses  named  Rohn  and  Bevan  gave  at  the  said  trial  of 
said  Wong  Ark.  (There  were  two  or  three  trials  of  the  said  Ark,  but 
the  alleged  false  testimony  occurred  at  the  first  of  said  trials.)  To 
this  evidence  the  appellant  objected,  as  incompetent,  irrelevant,  and 
immaterial,  because  appellant,  not  being  present  when  said  testimony 
was  given,  had  no  opportunity  to  examine  or  cross-examine  said 
witnesses,  because  said  Rohn  was  living  within  the  jurisdiction,  and 
should  have  been  called  himself,  and  because  Bevan  having  since  died, 
there  is  no  rule  by  which  his  former  testimony  can  be  introduced  in 
this  cause.  The  court  overruled  the  objections,  and  appellant  ex- 
cepted. 

The  ruling  of  the  court  was  right.  The  purpose  was,  not  to  produce 
said  testimony  anew,  as  tending  to  prove  the  facts  stated  therein :  it 
was  offered  merely  for  the  purpose  of  showing  as  a  fact  that  such 
testimony  had  been  given,  and  it  was  expressly  limited  by  the  court 
to  that  purpose.  The  materiality  of  alleged  false  testimony  does  not 
always  appear  upon  its  face,  or  when  simply  compared  with  the  in- 
dictment; it  may  be  material  on  account  of  certain  other  testimony 
which  had  been  previously  introduced  on  the  trial  of  a  cause.  The 
the  testimony  given  by  another  witness  which  is  material,  or  if  going 
to  the  credit  or  discredit  of  other  witnesses,  etc.  For  instance,  if,  on 
the  trial  of  A  for  a  felony  B  should  testify  that  C  was  at  a  certain 
place  at  a  certain  time,  this  would  not  appear  upon  its  face  to  be 
material;  but  if  C  had  previously  testified  that  he  was  at  another 
and  remote  place  at  said  time,  and  had  seen  A  commit  the  criminal 
offense  charged,  then  it  clearly  would  be  material.  And  so  the  previ- 
ous evidence,  and  the  state  of  the  cause  in  the  action  in  which  the 
alleged  false  testimony  was  given,  may  be  proven,  in  order  to  show 


2o8  Cases  on  Evidence 

the  materiality  of  the  latter  (2  Russell  on  Crimes,  662;  3  Greenleaf 
Ev.  197)  ;  otherwise  the  materiality  of  alleged  false  evidence  could 
rarely  be  shown.  The  rule  contended  for  by  appellant  was  confronted 
with  the  witnesses  who  testified  to  that  fact.  If  the  greater  part  of 
the  testimony  of  appellant  given  in  the  Wong  Ark  trial  was  material 
at  all,  it  was  so  only  in  connection  with  the  said  testimony  of  said 
witnesses  Rohn  and  Bevan. 

Reversed  on  other  grounds. 


BROWN  v.  COMMONWEALTH. 
73  Pa.  St.  321.     (1873) 

At  the  April  Term  1872  of  the  court  below,  the  grand  jury  found 
a  true  bill  against  Joseph  Brown  for  the  murder  of  Daniel  S.  Kraemer. 

There  was  a  large  amount  of  evidence  tending  to  connect  the  pris- 
oner with  the  murder. 

The  Commonwealth  having  examined  a  great  number  of  witnesses 
and  having  shown  that  one  Isaac  Hummel  had  been  arrested  with  the 
prisoner  on  suspicion  of  being  connected  with  the  murder,  called  B.  B. 
McCool,  Esq.,  a  member  of  the  Schuylkill  county  bar,  who  testified : 

"I  was  present  at  the  examination  of  Charles  Ewing  before  'Squire 
Reed  in  this  court-house.'  Squire  Reed  is  a  justice  of  the  peace  in 
the  borough  of  Pottsville.  Joseph  Brown  w^as  present  at  that  hearing 
and  represented  by  counsel.  There  were  two  members  of  the  bar, 
Messrs.  Farquhar  and  Strouse,  there.  They  represented  Brown  and 
Hummel.  It  was  not  a  preliminary  hearing  before  the  committing 
magistrate  I  took  notes  of  the  testimony  as  given  by  Charles  Ewing; 
(notes  shown  witness)  these  are  the  notes.  These  notes  are  correct 
of  Charles  Ewing's  testimony.  Mr.  Ewing  was  very  much  excited 
and  embarrassed  and  not  very  coherent.  I  took  down  nearly  every 
word  he  said,  and  order  in  which  he  said  it,  and  I  think  in  his  lan- 
guage. I  will  say  that  I  think  the  notes  contain  the  exact  words  of 
the  witness.  In  taking  the  notes  I  made  the  question  and  answer 
conform  to  the  exact  words  of  the  attorney  and  witness.  I  had  not 
time  to  write  down  the  questions,  but  took  questions  and  answers  to- 
gether. I  was  not  acting  as  counsel,  but  as  clerk  for  the  district 
attorney,  at  his  request.    I  am  now  counsel  in  the  case,  retained  for 


Former  Evidence  209 

the  Commonwealth.  I  think  my  notes  contain  the  exact  words  of  the 
witness." 

The  Commonwealth  then  offered  to  read  the  testimony  of  Ewing 
from  the  notes  of  Mr.  McCool.  The  offer  was  objected  to  by  the 
defendant,  admitted  by  the  court,  and  a  bill  of  exceptions  sealed. 

Read,   C.  J.     This  is  a  writ  of  error  to  the  Criminal  Court  of 

Schuylkill  county,  sued  out  under  the  Act  of  the  15th'  of  Feb.  1870, 

upon  the  oath  of  the  defendant,  and  brings  up  the  whole  record. 
*     *     * 

On  the  preliminary  hearing  before  the  committing  magistrate,  the 
defendant  and  his  counsel  being  present,  a  witness  was  examined 
whose  testimony  was  taken  down  by  defendant's  counsel,  and  the 
witnesses  having  died  before  the  trial,  the  notes  of  his  evidence  proved 
by  the  counsel  under  oath,  were  offered  in  evidence,  objected  to  and 
admitted.  It  was  objected  that  by  the  Constitution  of  the  state,  the 
defendant  was  entitled  to  meet  the  witnesses  face  to  face. 

The  doctrine  on  this  subject  is  thus  laid  down  in  the  3rd  volume  of 
Russell  on  Crimes,  by  Greaves,  4th  edition,  1865,  page  249.  "If  there 
has  been  a  previous  criminal  prosecution  between  the  same  parties, 
and  the  point  in  issue  was  the  same,  the  testimony  of  a  deceased  wit- 
ness, given  upon  oath  at  the  former  trial,  is  admissible  on  the  sub- 
sequent trial,  and  may  be  proved  by  any  one  who  heard  him  give 
evidence,"  and  the  same  is  repeated  at  page  424  in  the  note.  We  find 
the  same  rule  in  i  Phillips  &  Arnold's  Evidence,  pp.  445,  447.  Dr. 
Wharton,  in  his  valuable  Treatise  on  Criminal  Law  in  the  United 
States,  vol.  i,  p.  667,  says:  "The  testimony  of  a  deceased  witness 
given  at  a  former  trial  or  examination,  may  be  proved  at  a  subsequent 
trial  by  persons  who  heard  him  testify.  Even  the  notes  of  counsel 
of  the  testimony  of  such  witness  on  a  former  trial  between  the  same 
parties,  touching  the  same  subject-matter,  are  evidence  when  proved 
to  be  correct  in  substance,  although  the  counsel  does  not  recollect  the 
testimony  independently  of  his  notes.  The  better  opinion  seems  to  be 
that  it  is  sufficient  to  prove  the  substance  of  what  the  deceased  wit- 
ness said,  provided  the  material  particulars  are  stated,  though  it  has 
been  sometimes  held,  that  unless  the  precise  words  could  be  given  the 
testimony  would  be  rejected." 

In  this  state  the  most  liberal  rule  has  been  adopted,  in  relation  to 
the  former  evidence  of  what  was  testified  to  by  a  deceased  witness 
on  a  former  trial  or  examination,  as  will  be  seen  by  referring  to 
Cornell  v.  Green,  10  S.  &  R.  14;  Chess  v.  Chess,  17  Id.  409;  Moore 
V.  Pearson,  6  W.  &  S.  50,  and  Rhine  v.  Robinson,  3  Casey  30,  in  which 


2IO  Cases  ON  Evidence 

Chief  Justice  Lewis  said:  "The  notes  of  counsel,  showing  what  a 
deceased  witness  testified  to  on  a  former  trial  between  the  same 
parties  touching  the  same  subject-matter,  are  evidence  when  proved 
to  be  correct  in  substance,  although  the  counsel  did  not  recollect  the 
testimony  independent  of  his  notes,  and  although  he  did  not  recollect 
the  cross-examination,"  To  which  may  be  added  the  decision  in  Phil. 
&  Reading  R.  R.  v.  Spearen,  ii  Wright,  306,  the  opinion  being  deliv- 
ered by  my  brother  Agnew. 

There  was,  therefore,  no  error  in  the  court  admitting  the  notes 
of  Mr.  McCool  of  the  testimony  of  Ewing,  a  deceased  witness  in  the 
examination  before  the  committing  magistrate,  or  the  notes  of  any 
other  counsel,  or  those  of  the  committing  magistrate  himself. 

Reversed  on  other  grounds. 


DYING  DECLARATIONS.! 

RAILING  V.  COMMONWEALTH. 
no  Pa.  St.  100.     (1885) 

Green,  J.  The  principal  question  in  this  case  is  that  which  relates 
to  the  admissibility  of  the  dying  declarations  of  Annie  Foust.  The 
defendant  was  charged  with  administering  to  her  a  drug  with  intent 
to  procure  a  miscarriage,  and  it  was  also  charged  that  her  death  re- 
sulted in  consequence.  There  were  four  counts  in  the  indictment 
and  all  of  them  charged  the  death  of  the  woman  as  the  result  of  the 
defendant's  unlawful  act.  It  is  entirely  unquestioned  that  dying  dec- 
larations are  admissible  only  in  homicide  cases,  as  a  rule,  and  that 
the  death  of  the  deceased  must  be  the  subject  of  the  charge  and  the 
circumstances  of  the  death  of  the  subject  of  the  declarations:  i 
Greenl.  Ev.  sec.  156,  13th  ed.  Whart.  C.  Ev.  sec.  276;  Whart.  Am,  Cr, 
Law  sec.  669  et  seq.  It  is  equally  unquestioned  that  there  is  no  grade 
of  homicide  involved  in  this  case,  the  offense  charged  being  the  one 
commonly  known  as  abortion.  It  is  argued,  however,  with  much 
force,  that  the  death  of  the  woman,  when  it  occurs,  is  a  necessary 
ingredient  of  the  offense,  under  our  statute,  and  therefore  brings  the 
case  within  the  rule  above  stated.     It  is  claimed  that  the  death  is  in 


1  Hughes  on  Eyidence,  p.  62. 


Dying  Declarations  211 

part  at  least  the  subject  of  the  charge.  In  one  sense  this  is  true. 
But  the  question  is,  is  it  so  in  the  real  sense  of  the  rule  which  con- 
trols the  subject?  That  inquiry  involves  the  necessity  of  an  examina- 
tion of  our  criminal  statute  against  abortion.  It  consists  of  two  sec- 
tions, the  87th  and  88th  of  the  criminal  code  of  i860.  The  87th  pro- 
vides that  if  any  person  shall  unlawfully  administer  any  drug  or  sub- 
stitute to  a  pregnant  woman,  or  use  any  instrument  with  intent  to 
procure  her  miscarriage,  and  she  or  the  child  shall  die,  in  consequence 
of  such  act,  such  person  shall  be  guilty  of  felony,  and  shall  be  sen- 
tenced to  pay  a  fine  not  exceeding  $500,  and  to  undergo  imprison- 
ment at  labor  not  exceeding  seven  years.  The  88th  section  provides 
that  if  any  person  with  intent  to  procure  the  miscarriage  of  any 
woman  shall  unlawfully  administer  to  her  any  drug  or  substance 
or  use  any  instrument  or  other  means  with  like  intent,  he  shall  be 
guilty  of  felony  and  be  sentenced  to  pay  a  fine  not  exceeding  $500, 
and  undergo  an  imprisonment  at  labor  not  exceeding  three  years. 
In  the  last  case  the  offense  is  complete  without  the  death  of  the 
woman  or  child.  In  both  cases  the  grade  of  the  offense  is  the  same — 
felony.  In  both,  the  acts  done  by  the  prisoner  are  the  same.  In  the 
first,  if  those  acts  are  followed  by  the  death  of  the  mother  or  child 
as  a  consequence,  that  is,  in  the  relation  of  effect  to  a  cause,  a  differ- 
ence results  in  one  of  the  penalties  imposed.  The  possible  fine  is  the 
same,  but  the  possible  imprisonment  is  longer,  seven  years  instead 
of  three.  The  facts  which  constitute  the  crime  are  precisely  the  same 
in  both  cases,  to  wit,  the  administering  the  drug,  or  using  the  instru- 
ment with  intent  to  procure  a  miscarriage.  It  follows  that  the  death 
is  no  part  of  the  facts  which  go  to  make  up  or  constitute  the  crime. 
It  is  complete  with  the  death  or  without  it.  The  death  therefore 
considered  in  and  of  itself  is  not  a  constituent  element  of  the  offense. 
It  may  happen  or  it  may  not.  If  it  does  not  happen  a  certain  pos- 
sibility of  penalty  follows.  If  it  does  happen  the  same  character 
of  penalty  results  but  with  a  larger  possibility,  not  a  certainty,  in  one 
of  the  items.  This  seems  to  be  a  precise  expression  of  the  difference 
between  the  cases  provided  for  in  the  two  sections.  This  being  so 
the  question  recurs,  is  the  difference  between  the  two  of  such  a  char- 
acter as  to  change  the  application  of  the  rule  of  law  relating  to  the 
admissibility  of  dying  declarations.  Of  course  they  are  not  admissible 
if  death  does  not  result  as  a  consequence  from  the  unlawful  acts. 
Therefore  if  the  woman  should  subsequently  die  from  some  entirely 
different  and  independent  cause,  her  dying  declarations  in  relation  to 
a  prior  miscarriage  would  be  clearly  incompetent.     In  case  she  does 


212  Cases  on  Evidence 

die  in  consequence  of  the  unlawful  acts,  the  crime  charged  and  tried 
is  not  homicide  in  any  of  its  forms,  but  the  felony  of  administering 
a  drug,  or  using  an  instrument,  with  intent  to  produce  a  miscarriage. 
In  its  facts  and  in  its  essence  it  is  the  same  crime  that  is  charged  and 
tried  if  no  death  results.  The  death,  when  it  occurs,  is  an  incident 
the  sole  purpose  of  which  is  to  determine  whether  the  imprisonment 
of  the  defendant  may  be  longer  than  when  the  death  does  not  occur. 
The  facts  which  constitute  the  crime  may  not  be  proved  by  any  dec- 
larations of  the  woman,  when  death  does  not  follow,  or  when  it 
follows  from  some  other  cause.  Why  then  should  the  very  same 
facts  be  proved  by  such  declaration,  when  death  does  result?  Not 
because  it  is  a  homicide  case  and  the  rule  as  to  dying  declarations 
admits  them  in  such  cases,  because  it  is  not  a  case  of  homicide  in 
any  point  of  view.  Not  because  the  death  is  the  subject  of  the  charge, 
for  the  charge  is  the  attempted  or  accomplished  miscarriage  by  means 
of  a  drug  or  instrument.  That  crime  is  as  fully  completed  without 
the  death  as  with  it.  The  death  therefore  is  not  an  essential  in- 
gredient of  it.  Its  function  under  the  statute,  when  it  occurs  as  a 
consequence  is,  not  to  determine  the  factum,  or  the  character,  or  the 
grade  of  the  crime,  but  the  character  of  the  penalty  to  be  endured 
by  the  criminal.  Of  course  if  the  statute  had  declared  that  when 
death  resulted  the  offense  should  be  manslaughter  or  any  other  grade 
of  homicide,  the  case  would  be  entirely  different.  Then  the  death 
would  be  an  essential  ingredient  of  the  offense,  and  would  be  the 
subject  of  the  charge,  and  the  rule  as  to  dying  declarations  would 
apply.  But  such  is  not  this  case  and  we  do  not  think  it  wise  to  en- 
large the  operation  of  the  rule  so  as  to  embrace  cases  other  than 
homicide  strictly.  The  objections  to  the  admission  of  such  testi- 
mony are  of  the  gravest  character.  It  is  hearsay,  it  is  not  under 
the  sanction  of  an  oath,  and  there  is  no  opportunity  for  cross-exam- 
ination. It  is  also  subject  to  the  special  objection  that  it  generally 
comes  from  persons  in  the  last  stages  of  physical  exhaustion,  with 
mental  powers  necessarily  impaired  to  a  greater  or  less  extent,  and 
at  the  best  represents  the  declarant's  perceptions,  conclusions,  infer- 
ences and  opinions,  which  may  be  and  often  are,  based  upon  im- 
perfect and  inadequate  grounds.  Nor  is  the  reason  ordinarily  given 
for  their  admission  at  all  satisfactory.  It  is  that  the  declarant  in  the 
immediate  presence  of  death  is  so  conscious  of  the  great  responsibility 
awaiting  him  in  the  near  future  if  he  utters  falsehood,  that  he  will 
in  all  human  probability  utter  only  the  truth.  The  fallacy  of  this 
reasoning  has  been  many  times  demonstrated.     It  leaves  entirely  out 


Dying  Declarations  213 

of  account  the  influence  of  the  passions  of  hatred  and  revenge  which 
almost  all  human  beings  naturally  feel  against  their  murderers,  and  it 
ignores  the  well  known  fact  that  persons  guilty  of  murder,  beyond  all 
question,  very  frequently  deny  their  guilt  up  to  the  last  moment  on 
the  scaffold. 

But  in  point  of  fact  the  reason  we  are  considering  cannot  be  re- 
garded as  the  real  or  the  controlling  reason  for  the  rule,  because, 
in  terms,  it  would  be  just  as  applicable  to  declarations  made  by 
dying  persons  in  regard  to  civil  affairs  or  to  all  minor  criminal  mat- 
ters, as  to  the  facts  attending  a  homicide.  In  truth  there  would  be 
less  temptation  to  falsify  in  regard  to  such  matters  than  in  regard 
to  acts  of  violence  perpetrated  upon  the  person  of  the  declarant. 
Yet  it  is  undisputed  that  in  all  civil  cases  and  in  all  crimes  other 
than  homicide,  such  declarations  are  entirely  incompetent.  A  far 
better  reason  in  support  of  the  rule,  as  it  seems  to  us,  is,  that  dying 
declarations  are  admitted  from  the  necessity  of  the  case  and  in  order 
that  murderers  may  not  go  unpunished.  Such  a  reason  only  can 
justify  their  admission  in  cases  involving  the  life  of  the  accused. 
While  ordinarily  the  precautions  against  illegitimate  testimony  in- 
crease with  the  danger  menacing  the  accused,  in  this  one  exceptional 
case  of  homicide  they  are  relaxed,  and  the  rule  which  excludes  mere 
declarations  in  all  other  cases  is  reversed.  In  Whart.  Crim.  Ev.  sec. 
278,  the  rule  is  thus  stated:  "Dying  declarations  are  admitted  from 
the  necessity  of  the  case,  to  identify  the  prisoner  and  the  deceased, 
to  establish  the  circumstances  of  the  res  gestae,  and  to  show  the  trans- 
actions from  which  the  death  results."  In  Greenl.  on  Ev.  Vol.  i)  13th 
ed.)  sec.  156,  the  writer  says:  "These  or  the  like  considerations,  have 
been  regarded  as  counterbalancing  the  force  of  the  general  principle 
above  stated;  leaving  this  exception  to  stand  only  upon  the  ground 
of  the  public  necessity  or  preserving  the  lives  of  the  community  by 
bringing  manslayers  to  justice.  For  it  often  happens  that  there  is 
no  third  person  present  to  be  an  eye-witness  to  the  fact ;  and  the 
usual  witness  in  other  cases  of  felony,  namely,  the  party  injured,  is 
himself  destroyed."  In  the  foot-note  2  to  the  above  section  the  opin- 
ion of  Judge  Redfield  is  quoted  in  the  following  words :  "But  it 
was  from  a  misapprehension  of  the  true  grounds  upon  which  the 
declarations  are  receivable  as  testimony.  It  is  not  received  on  any 
other  grounds  than  that  of  necessity,  in  order  to  prevent  murder  going 
unpunished.  What  is  said  in  the  books  about  the  situation  of  the 
declarant,  he  being  virtually  under  the  most  solemn  sanction  to  speak 
the  truth,  is  far  from  presenting  the  true  ground  of  admission," 


214  '  Cases  on  Evidence 

Believing  this  to  be  the  true  ground  upon  which  to  place  the  admis- 
sibility of  dying  declarations,  it  will  be  seen  at  once  that  they  are 
incompetent  except  in  cases  of  actual  homicide,  where  the  killing  is 
the  very  substance  and  subject  of  the  criminal  accusation  on  trial. 
This  we  hold  to  be  the  true  sense  in  which  to  interpret  the  rule  that 
such  declarations  are  only  admissible,  where  the  death  is  the  subject 
of  the  charge. 

All  the  text  books  and  a  host  of  judicial  decisions  assert  that  the 
rule  of  admissibility  is  confined  to  cases  of  homicide.  Thus  this  court 
in  Brown  v.  Commonwealth,  23  P.  F.  S.,  on  p.  327,  state  the  rule 
quoting  from  Whart.  Am.  Cr.  Law,  sec.  669  in  these  words:  "The 
dying  declarations  of  a  person  who  expects  to  die,  respecting  the  cir- 
cumstances under  which  he  received  a  mortal  wound  are  constantly 
admitted  in  criminal  prosecutions  where  the  death  is  the  subject  of 
criminal  inquiry,  though  the  prosecution  be  for  manslaughter;  though 
the  accused  was  not  present  when  they  were  made  and  had  no  oppor- 
tunity for  cross-examination,  and  against  or  in  favor  of  the  party 
charged  with  the  death." 

There  is  a  vast  number  of  cases  in  which  where  the  prisoner  is 
tried  for  a  crime  other  than  homicide  the  dying  declarations  of  the 
persons  upon  whom  the  crime  was  perpetrated  are  inadmissible,  though 
they  relate  to  the  circumstances  of  the  crime.  Thus  in  Rex  v.  Lloyd 
et  ah,  4  Carr.  &  P.  233,  it  was  held  that  on  an  indictment  for  robbery 
the  declaration  in  articulo  mortis  of  the  party  robbed  is  not  admissible 
in  evidence.  Boland,  B.,  said,  'T  think  that  declarations  in  articulo 
mortis  are  not  admissible  in  evidence  to  make  out  a  charge  of  rob- 
bery; nor  indeed  any  other  charge  except  those  in  which  the  death 
of  the  deceased  person,  by  whom  the  declaration  was  made,  is  the 
subject  of  inquiry."  A  citation  of  this  class  of  cases  is  not  necessary 
as  they  are  quite  familiar  and  are  not  at  all  disputed.  It  only  re- 
mains to  consider  Ithe  course  of  authority  upon  the  very  question  now 
before  us.  It  has  never  heretofore  been  before  this  court.  But  in 
England  and  several  of  the  states  it  has  been  considered  and  de- 
termined, and  the  weight  of  authority  seems  to  be  quite  decidedly 
against  the  admissibility  of  the  evidence.  Thus  in  Rex  v.  Hutchinson, 
2  B.  &  C.  608,  note  a,  the  prisoner  was  indicted  for  administering 
savin  to  a  woman  pregnant  but  not  quick  with  child,  with  intent  to 
procure  abortion.  The  woman  was  dead,  and  for  the  prosecution, 
evidence  of  her  dying  declaration  upon  the  subject  was  tendered.  The 
court  rejected  the  evidence,  observing  that  although  the  declaration 
might  relate  to  the  cause  of  the  death,  still  such  declarations  were 


Dying  Deci^arations  215 

admissible  in  those  cases  alone  where  the  death  of  the  party  was  the 
subject  of  the  inquiry.  In  Reg.  v.  Hind,  8  Cox,  C.  C,  300,  the  de- 
fendant was  indicted  for  using  instruments  upon  a  woman  with  intent 
to  produce  an  abortion,  in  consequence  of  which  she  died.  It  was 
held  that  her  dying  declarations  in  relation  to  the  offense  were  inad- 
missible. The  same  course  was  followed  in  the  state  of  New  York 
in  the  case  of  the  People  v.  Davis,  56  N.  Y.  95,  where  the  statute  is 
quite  similar  to  our  own,  the  penalty  being  increased  when  the  woman 
dies  in  consequence  of  the  unlawful  acts.  It  was  held  that  the  dying 
declarations  of  the  woman  were  incompetent  on  the  general  ground  that 
the  death  was  not  the  subject  of  the  charge.  In  the  case  of  the  State 
V.  Harper,  35  Ohio  St.  Rep.  78,  the  same  doctrine  was  held  under  a 
statute  almost  identical  with  ours.  The  Chief  Justice  said,  "This  was 
an  indictment  for  unlawfully  using  an  instrument  with  the  intent  of 
producing  an  abortion,  and  not  an  indictment  for  homicide:"  State 
V.  Barker,  28  Ohio  St.  583 ;  People  v.  Davis,  56  N.  Y.  96.  The  death 
was  not  the  subject  of  the  charge,  and  was  alleged  only  as  a  conse- 
quence of  the  illegal  act  charged,  which  latter  was  the  only  subject 
of  investigation.  Did  the  court  err  in  rejecting  the  dying  declaration  in 
proof  of  the  charge?  We  think  not.  The  general  rule  is  that  dying 
declarations  are  admissible  only  when  the  death  of  the  declarant  is  the 
subject  of  the  charge,  and  the  circumstances  of  the  death  are  the 
subject  of  the  dying  declaration:  Rex  v.  Mead,  2  B.  &  C.  605;  i 
Greenl.  Ev.  156;  Rex  v.  Lloyd,  4  C.  &  P.  233." 

On  the  other  hand  the  Supreme  Court  of  Indiana  has  held  that 
such  declarations  were  admissible  in  an  indictment  under  a  similar 
statute:  Montgomery  v.  State,  reported  in  3  Crim.  Law  Mag.,  523. 
In  State  v.  Dickinson^  41  Wis,  299,  the  declarations  were  admitted, 
but  by  the  statute  of  that  state  the  offense  is  expressly  made  man- 
slaughter where  the  woman  dies  and  the  case  was  therefore  one  of 
homicide  and  within  the  rule.  The  case  in  Indiana  appears  to  be  the 
only  one  in  a  court  of  last  resort  in  which  the  declarations  have  been 
held  admissible.  After  a  careful  examination  of  the  opinion  in  that 
case,  and  also  of  two  other  cases  decided  by  Courts  of  Quarter 
Sessions  in  our  own  state,  we  feel  constrained  to  say  we  think  the 
better,  and  the  safer  rule  is  to  limit  the  admissibility  of  dying  declara- 
tions to  cases  of  homicide  only.  We  are  therefore  of  opinion  that  the 
learned  court  below  was  in  error  in  receiving  the  declarations  of  Annie 
Foust  in  this  case  and  for  that  reason  the  judgment  must  be  reversed. 

Judgment  reversed. 


2i6  Cases  on  Evidence 

JOHNSON  V.  STATE. 
30  Ala.  456.    (1873) 

The  indictment  in  this  case  contained  a  single  count  charging  that 
the  defendant,  Jerry  Johnson,  "did  carnally  know,  or  abuse  in  the 
attempt  to  carnally  know,  Frances  Rickett,  a  female  under  the  age 
of  ten  years."  The  defendant,  when  arraigned,  pleaded  not  guilty; 
and  he  was  tried  on  issue  joined  on  that  plea.  On  the  trial,  as  the 
bill  of  exceptions  states,  "the  court  admitted,  against  the  defendant's 
objection,  evidence  of  the  dying  declarations  of  the  child  upon  whom 
the  outrage  was  committed,  as  to  who  committed  it,  to  go  to  the  jury, 
— not  for  the  purpose  of  showing  complaint  made,  but  to  be  consid- 
ered by  the  jury  as  competent  evidence  to  fix  guilt  on  the  defendant, 
along  with  the  other  evidence  of  the  case,  if  the  jury  believe  such 
declarations  were  made.  The  proper  predicate  was  laid  for  the 
introduction  of  the  dying  declarations,  if  they  were  competent  evi- 
dence under  the  issues  in  the  cause,  and  they  were  to  this  effect : 
'Ma,  I'm  going  to  die,  and  Jerry  Johnson  done  me  so,'  the  child 
pointing  at  the  time  to  her  injured  parts.  The  defendant  moved  to 
exclude  said  dying  declarations  from  the  jury,  on  the  ground  that  they 
were  illegal  in  the  case;  which  motion  the  court  overruled,  and  the 
defendant  duly  excepted.  This  was  all  the  evidence  in  any  way 
affecting  or  material  to  the  ruling  of  the  court  upon  the  admissibility 
of  said  declarations." 

The  verdict  of  the  jury  was,  "We,  the  jury,  find  the  defendant 
guilty,  to  be  ^punished  by  imprisonment  in  the  penitentiary  for  life." 
The  defendant  moved  in  arrest  of  judgment, — ist,  because  the  indict- 
ment charges  two  offenses,  and  the  verdict  is  of  guilty  merely,  with- 
out ascertaining  of  what;  2ndly  because  it  is  impossible  to  tell  of  what 
offense  the  defendant  was  convicted,  or  whether  the  finding  is  sup- 
ported by  the  evidence."  The  court  overruled  the  motion  in  arrest 
of  judgment,  and  sentenced  the  defendant  to  confinement  in  the  peni- 
tentiary for  life. 

The  admission  of  the  dying  declarations  of  the  child  and  the  over- 
ruling of  the  motion  in  arrest  of  judgment,  are  now  assigned  as 
error. 

Brickell,  J.  The  statute  (Rev.  Code,  sec.  3663)  declares  the  car- 
nal knowledge  of  a  female  under  the  age  of  ten  years,  or  the  abuse 
of  such  female  in  the  attempt  carnally  to  know  her  must,  at  the 
discretion  of  the  jury,  be  punished  either  by  death,  imprisonment  in 


Dying  Declarations  217 

the  penitentiary  for  life,  or  hard  labor  for  the  county  for  life.  The 
form  of  the  indictment  prescribed  by  the  Code  (and  which  in  this  case 
has  been  pilrsued)  is,  "A.  B.  did  carnally  know,  or  abuse  in  the  attempt 
to  carnally  know  C.  D.,  a  female  under  the  age  of  ten  years."  This 
form  of  indictment  the  Code  authorizes,  when  offenses  are  of  the 
same  character,  and  subject  to  the  same  punishment.  Rev.  Code, 
sec.  4125.  It  was  permissible,  at  common  law,  to  charge  such  offenses 
in  different  counts,  to  meet  the  evidence  when  fully  disclosed  on  the 
final  trial.  No  right  of  the  accused  is  invaded,  in  permitting  them  to 
be  charged  in  the  alternative,  in  the  same  count,  instead  of  several 
counts  charging  each  alternative.  Burdine  v.  State,  25  Als.  60;  Sher- 
rod  V.  State,  lb.  78.  Under  such  an  indictment,  the  defendant  may  be 
convicted  on  proof  of  either  grade  or  form  of  the  offense.  McElhany 
V.  State,  24  Ala.  ji ;  Mooney  v.  State,  8  Ala.  328;  Cheek  v.  State,  38 
Ala,  227.  And  a  general  verdict  of  guilty,  on  such  an  indictment  is 
not  ground  of  error,  or  motion  in  arrest  of  judgment.  Cawley  v. 
State,  37  Ala.  152.  It  is  not  ground  of  error,  or  motion  in  arrest  of 
judgment,  because  it  protects  the  defendant  from  any  future  prosecu- 
tion for  either  grade  or  form  of  the  offense,  and  the  sentence  pro- 
nounced cannot  impose  any  greater  punishment,  than  would  have  fol- 
lowed a  specific  finding  of  guilt  of  one  form  or  grade  of  the  offense, 
and  not  guilty  as  to  the  other,  they  must  have  affixed  the  punishment, 
not  other  or  different  for  the  one  than  the  other  grade.  No  possible 
injury  can,  therefore,  result  to  the  accused  from  such  finding. 

2,  The  bill  of  exceptions  expressly  negatives  any  presumption 
that  the  dying  declarations  of  the  child,  on  whom  the  injury  is  charged 
to  have  been  committed,  were  offered  or  received  as  part  of  the  res 
gestcB,  or  were  so  closely  connected  with  the  wrong  as  to  be  con- 
sidered as  her  complaint  thereof.  It  is  affirmed  they  were  offered 
strictly  as  her  dying  declarations.  In  so  admitting  them,  the  court 
erred.  Dying  declarations,  according  to  the  unbroken  current  of 
modern  authorities,  are  admissible  only  in  cases  of  homicide,  when 
death,  with  the  circumstances  attendant  on  it,  and  the  guilty  agent  in 
producing  it,  is  the  subject  of  inquiry.     2  Phil.  Ev.  610,  note  455. 

For  this  error,  the  judgment  is  reversed,  and  the  cause  remanded; 
but  the  prisoner  must  remain  in  custody,  until  discharged  by  due 
course  of  law. 


2i8  Cases  on  Evidence 

THURSTON  V.  FITZ. 

p/  Kan.  468.     (1914) 

West,  J.  The  theory  on  which  dying  declarations  have  been  ad- 
mitted is  that  the  reahzation  of  impending  death  operates  on  the 
mind  and  conscience  of  the  declarant  with  strength  equal  to  that  of  an 
ordinary  oath  administered  in  a  judicial  proceeding.  After  such 
declarations  became  classed  as  hearsay  in  other  cases  it  was  thought 
better  to  accept  this  sort  of  substitute  for  a  formal  oath  in  homicide 
cases  than  to  let  a  guilty  manslayer  escape.  As  stated  in  The  State  v. 
O'Shea,  60  Kan.  772,  57  Pac.  970,  the  rule  is  limited  to  cases  of  hom- 
icide and  is  confined  to  the  act  of  killing  and  the  circumstances  im- 
mediately attending  the  act  which  form  a  part  of  the  res  gestcr.  In 
The  State  v.  Bohan,  15  Kan.  407,  it  was  said  by  Chief  Justice  King- 
man: 

"Its  admission  can  be  justified  only  on  the  ground  of  absolute  neces- 
sity, growing  out  of  the  fact  that  the  murderer  by  putting  the  witness, 
and  generally  the  sole  witness,  of  his  crime  beyond  the  power  of  the 
court  by  killing  him,  shall  not  thereby  escape  the  consequences  of  his 
crime."     (p.  418) 

But  in  The  State  v.  Reed,  53  Kan.  767,  37  Pac.  174,  the  present 
chief  justice  stated  that: 

"The  controlling  question  is,  whether  the  declarations  were  uttered 
under  a  sense  of  impending  dissolution,  and  the  fact  that  death  did  not 
immediately  ensue,  or  that  a  hope  of  recovery  was  subsequently  en- 
tertained, will  not  affect  their  admissibility,     (p.  773) 

And  in  The  State  v.  Knowll,  69  Kan.  767,  yy  Pac.  580,  the  state- 
ment was  made  that : 

The  reasons  why  dying  declarations  are  taken  out  of  the  rule 
which  excludes  hearsay  testimony  are  those  of  necessity,  joined  with 
the  conclusion  that  a  realization  by  the  declarant  of  the  certain  and 
speedy  approach  of  death  would  be  as  powerful  an  incentive  on  his 
part  to  tell  the  truth  as  would  the  administration  of  an  oath."     (p. 

770) 

The  history  of  the  rule  and  its  application  as  given  by  the  leading 
text  writers  on  evidence  shows  that  at  a  very  early  time  it  was 
thought  with  the  fathers  of  the  civil  law  that  one  would  tell  the 
truth  on  his  death-bed,  and  for  a  time  dying  declarations  were  ad- 
mitted in  cases  both  civil  and.  criminal ;  but  later  they  were  confined 
to  cases  of  homicide,  the  idea  having  become  prevalent  that  so  excep- 


Dying  De;ci,arations  219 

tional  and  dangerous  a  class  of  evidence  should  be  restricted  in  its 
use  and  application  to  the  "Public  necessity  of  preserving  the  lives  of 
the  community  by  bringing  manslayers  to  justice."  (i  Greenleaf  on 
Evidence,  15th  ed.  sec.   156.) 

It  has  ever  been  realized  that  the  party  most  vitally  affected  by 
such  declarations  is  without  the  means  of  cross-examination,  and 
it  is  somewhat  curious  to  observe  the  readiness  with  which  the  courts 
have  concluded  that  their  admission  is  not  in  conflict  with  the  con- 
stitutional right  to  meet  one's  witness  face  to  face,  i  Elliot  on  Evi- 
dence, sec.  345.)  It  would  seem  that  the  courts  first  conceived  and 
recognized  the  sanction  which  pending  death  would  give  to.  the  state- 
ment, and  that  this  was  rather  a  predecessor  than  an  exception  tq 
the  general  rule  excluding  hearsay  testimony ;  that  after  hearsay 
had  become  generally  regarded  as  inadmissible  it  was  reasoned  that 
dying  declarations  inherently  belong  in  that  class,  but  that  as  a  mat- 
ter of  public  policy  or  necessity  their  legitimacy  should  be  recog- 
nized in  homicide  cases  only.  One  author  informs  us  that  some  of 
the  earlier  text-writers  interpreted  the  rule  as  applying  to  civil  as 
well  as  criminal  cases  and  the  courts  upon  examination  found  that 
such  interpretation  was  incorrect,  (i  ElHot  on  Ev.  sec.  351.)  An- 
other states  that  up  to  1800  no  distinction  is  found  between  civil  and 
criminal  cases  or  between  different  kinds  of  criminal  cases.  2  Wig- 
more  on  Evidence,  sec.  143 1.)  A  writer  in  the  American  Law  Journal 
reviewing  the  history  of  the  matter  concludes  that  up  to  1836  in 
England  such  declarations  were  admitted  in  all  cases,  civil  and  crim- 
inal, and  that  the  present  rule  was  reached  by  the  decisions  of  various 
courts  in  this  country  from  1806  to  1874.  (i  Am.  Law  Jour.  p.  366.) 
The  real  basis  of  admissibility,  aside  from  any  supposed  theory  of 
necessity,  is  the  notion  which  long  ago  became  a  rule  of  law  that 
the  conscious  danger  of  impending  death  is  equivalent  to  the  sanction 
of  an  oath.  Lord  Chief  Baron  Eyre  is  credited  with  the  dramatic 
statement  that: 

"They  are  declarations  made  in  extremity,  when  the  party  is  at  the 
point  of  death,  and  when  every  hope  of  this  world  is  gone;  when 
every  motive  of  falsehood  is  silenced,  and  the  mind  is  induced  by 
the  most  powerful  consideration,  to  speak  the  truth.  A  situation  so 
solemn  and  so  awful  is  considered  by  the  law  as  creating  an  obligation 
equal  to  that  which  is  imposed  by  a  positive  oath  in  a  court  of  jus- 
tice."    (i  Qreenl.  on  Ev.  15th  ed.  sec.  156.) 

Some  have  sought  to  base  the  change  which  restricts  such  evidence 
to  the  one  class  of  cases  on  the  fact,  disclosed  by  experience,  that 


220  Cases  on  Evidence 

some  really  do  not  tell  the  truth  even  in  articulo  mortis,  and  hence 
it  is  argued  that  it  was  deemed  safer  to  exclude  such  statements  ex- 
cept when  the  exclusion  might  let  a  murderer  go  free.  If  this  was 
ever  seriously  deemed  the  basis  of  the  change  it  certainly  lacked  the 
merit  of  logic  or  consistency,  for  some  are  not  truthful  when  under 
the  sanction  of  an  oath  duly  administered,  and  in  no  class  of  cases 
should  doubtful  evidence  be  received  more  charily  than  in  those  in- 
volving the  life  and  liberty  of  the  one  on  trial.  And  by  so  much- 
the  more  should  any  sort  of  evidence  safe  to  be  admitted  in  such  a 
case  be  deemed  proper  in  an  action  involving  mere  property  rights. 
Prof.  Wigmore  suggests  that: 

"The  notion  that  a  crime  is  more  worthy  the  attention  of  courts 
than  a  civil  wrong  is  a  traditional  relic  of  the  days  when  civil  jus- 
tice was  administered  in  the  royal  courts  as  a  purchased  favor,  and 
criminal  prosecutions  in  the  King's  name  were  zealously  encouraged 
because  of  the  fines  which  they  added  to  the  royal  revenues.  The 
sanction  of  a  dying  declaration  is  equally  efficacious  whether  it  speaks 
of  a  murder  or  a  robbery  or  a  fraudulent  will ;  and  the  necessity 
being  the  same  the  admissibility  should  be  the  same."  (2  Wig.  on 
Ev.  sec.  1436.) 

The  rule  admitting  and  the  rule  restricting  the  declaration,  as  in- 
dicated, are  entirely  court  made,  and  when  the  reason  for  this  restric- 
tion to  cases  of  homicide  ceases,  if  it  ever  existed,  then  such  restriction 
should  likewise  cease.  It  might  be  argued  that  this  common-law 
doctrine  has  become  so  embedded  in  our  judicial  system  that  it  should 
be  left  untouched.  But  it  was  said  in  Harrington  v.  Lowe,  73  Kan. 
I ;  84  Pac.  570,  that  there  was  no  longer  any  reason  for  the  common- 
law  doctrine  relating  to  the  contracts  of  married  women,  "and  with 
the  death  of  the  reason  for  it  every  legal  doctrine  dies."     (p.  21.) 

In  McFarland  v.  Shaw,  4  N.  Car.,  2nd  ed.  200,  2  N.  Car.  Law 
Repos.  102,  the  Supreme  Court  of  North  Carolina  decided  that  in 
an  action  by  a  father  for  the  seduction  of  his  daughter  he  could  give 
in  evidence  her  dying  declaration  charging  the  defendant  with  having 
been  her  seducer.  It  was  said  that  the  decision  was  confined  to  the 
facts  presented,  but  in  holding  the  evidence  competent  the  court  used 
this  language : 

"In  cases  where  life  is  at  stake,  such  evidence  is  uniformly  received 
and  credited,  and  numerous  are  the  victims  of  its  authority,  recorded 
in  the  mournful  annals  of  human  depravity.  Can  the  practice  of 
receiving  it  to  destroy  life,  and  rejecting  it  where  a  compensation 


Dying  Deci^rations  221 

is  sought  for  a  civil  injury,  derive  any  sanction  from  reason,  justice 
or  analogy?"     (p.  203.) 

The  Supreme  Court  of  Georgia  in  criticizing  this  holding  as  con- 
trary to  the  whole  current  of  authority  said : 

"We  will  not  say  that  there  is  not,  perhaps,  as  much  reason  for 
admitting  the  evidence  in  a  case  like  this  as  in  one  of  a  homicide." 
(Wooten  V.  Wilkins,  39  Ga.  223,  225.) 

In  Barfield  v.  Britt,  47  N.  Car.  41,  the  decision  in  McFarland  v. 
Shaw  was  repudiated.  It  was  said  the  holding  had  manifestly  been 
made  under  the  impression  then  generally  prevalent  that  dying  dec- 
larations were  admissible  under  the  rule  stated  by  Lord  Chief  Baron 
Eyre,  and  that  if  it  stood  upon  the  general  principle  alone  "it  might 
well  have  been  contended,  as  it  was  contended,  that  dying  declarations 
ought  to  be  admitted  in  all  cases,  civil  as  well  as  criminal."  (p.  43.) 
But  the  court  deemed  the  lack  of  opportunity  for  cross-examination 
the  reason  for  restricting  such  declarations  to  criminal  homicide  cases, 
a  view  for  which  we  do  not  find  much  reason  or  authority.  We  are 
confronted  with  a  restrictive  rule  of  evidence  commendable  only 
for  its  age,  its  respectability  resting  solely  upon  a  habit  of  judicial 
recognition,  formed  without  reason  and  continued  without  justifi- 
cation. The  fact  that  the  reason  for  a  given  rule  perished  long  ago 
is  no  just  excuse  for  refusing  now  to  declare  the  rule  itself  abro- 
gated, but  rather  the  greater  justification  for  so  declaring;  and  if  no 
reason  ever  existed,  that  fact  furnishes  additional  justification. 

The  doctrine  of  stare  decisis  does  not  preclude  a  departure  from 
precedent  established  by  a  series  of  decisions  clearly  erroneous,  un- 
less property  complications  have  resulted  and  a  reversal  would  work 
a  greater  injury  and  injustice  than  would  ensue  by  following  the  rule. 
(11  Cyc.  749.)  The  tendency  is  towards  the  reception  rather  than 
the  rejection  of  evidence,  experience  having  shown  that  more  harm 
results  from  its  exclusion  than  from  its  admission.  (Fish  v.  Poor- 
man,  85  Kan.  237,  243,  116  Pac.  898;  i  Wigmore  on  Ev.  sec.  578.) 
We  hold  that  the  declaration  is  competent,  and  upon  another  trial 
should  be  admitted. 

The  ruling  sustaining  the  demurrer  is  reversed  and  the  cause  is 
remanded  for  further  proceedings. 

Benson,  J.  (dissenting)  :  The  rule  that  dying  declarations  are 
only  admissible  where  the  death  of  the  declarant  is  the  subject  of 
investigation  is  settled  as  firmly  in  the  jurisprudence  of  this  state 
as  any  rule  can  be  which  is  not  established  by  constitution  or  statute. 

Conceding  that  the  rule  should  be  changed,  there  is  one  obvious 


222  Cases  on  Evidence 

reason,  without  referring  to  others,  why  the  legislature  and  not  the 
court  should  make  it. 

Professor  Wigmore,  after  a  careful  review  of  the  decisions,  in- 
cluding those  of  this  state,  concludes  that  the  limitations  upon  the 
admission  of  dying  declarations  do  not  rest  upon  sound  principles. 
But  his  recommendation  is  that  they  be  abolished  by  legislation.  (2 
Wigmore  on  Evidence,  sec.  1436.)  It  is  dangerous  to  abolish  them 
otherwise. 

I  dissent  from  that  part  of  the  opinion  which  overthrows  the  rule 
of  common  law  and  the  decisions  of  this  court  concerning  dying  dec- 
larations. 


BOYLE  V.  THE  STATE. 
97  Ind.  322.     (1884) 


NiBLACK,  J.  This  was  a  prosecution  for  murder,  under  section 
1904  R.  S.  1881. 

The  indictment  was  in  six  counts.  The  first  count  charged  the 
appellant,  William  Boyle,  with  having,  on  the  15th  day  of  March, 
1884,  at  the  county  of  Allen,  in  this  State,  unlawfully,  purposely, 
feloniously,  and  with  premeditated  malice,  killed  and  murdered  one 
Daniel  Casey,  by  then  and  there  shooting  him  to  death  with  a  pistol. 
A  jury  found  the  defendant  guilty  of  murder  in  the  first  degree  as 
charged  above  in  the  first  count  of  the  indictment,  and  fixed  his 
punishment  at  death.  After  considering  and  overruling  a  motion 
for  a  new  trial,  the  court  pronounced  judgment  upon  the  verdict, 
and  sentenced  the  defendant  to  be  hung  on  Wednesday,  the  ist  day 
of  October,  1884. 

One  question  remains  which  ought  to  be  ruled  upon  at  the  present 
hearing  to  relieve  the  embarrassment  which  might  otherwise  result 
when  the  cause  shall  again  be  tried.  The  dying  declaration  of  Casey, 
which  had  been  reduced  to  writing,  was,  after  satisfactory  preliminary 
proof,  read  in  evidence  by  the  prosecuting  attorney,  as  follows: 

"Dying  declaration  of  Daniel  Casey,  taken  at  Monroeville,  Allen 
county,  Indiana,  on  the  i6th  day  of  March,  1884.  Q.  What  is  your 
name  and  residence?  A.  Daniel  Casey;  Norwich,  Connecticut.  Q. 
Have  you  given  up  all  hope  of  life?  A.  I  have,  of  course.  Q.  Is 
this  declaration  which  you  now  make  free  from  all  malice  ?    A.    Yes, 


Dying  Deci^rations  223 

it  is ;  I  forgive  him.  Q.  What  is  the  name  of  the  man  who  shot 
you?  A.  I  don't  know  his  name.  Q.  Where  were  you  when  he 
shot  you?  A.  On  the  corner  of  Railroad  and  Empire  streets  in 
the  town  of  Monroeville,  Allen  county,  Indiana.  Q.  Was  the  man 
whom  you  identified  on  the  15th  of  March,  in  the  presence  of  the 
marshal  of  Fort  Wayne,  J.  B.  Neezer,  Dr.  C.  A.  Lester,  and  others, 
the  man  who  shot  you?  A.  Yes,  sir;  that  was  the  man  who  shot 
me.  Q.  What  reason,  if  any,  had  the  man  you  have  so  identified 
for  shooting  you?  A.  Not  any  that  I  know  of;  he  said  he  would 
shoot  my  damned  heart  out.  Q.  What  were  you  doing  at  the  time 
the  shooting  took  place? 

his 
Danieiv  X  Casey." 
mark. 

It  was  objected  that  this  declaration  was  inadmissible  in  evidence: 
First,  because  it  was  in  the  form  of  a  deposition.  Secondly,  because 
the  answer  to  the  question  "What  reason,  if  any,  had  the  man  for 
shooting  you?"  was  a  mere  expression  of  an  opinion  by  Casey,  in 
disregard  of  the  inhibition  imposed  by  the  case  of  Binn  v.  State,  46 
Ind.  311.  Thirdly,  because  it  was  incomplete  by  reason  of  the  failure 
of  Casey  to  answer  the  last  question  addressed  to  him. 

In  the  first  place,  a  dying  declaration  may  be  made  in  answer  to 
questions  addressed  to  the  dying  man  and  reduced  to  writing,  i 
Greenl.  Ev,  sec.  159  and  note;  Com.  v.  Haney,  127  Mass.  455;  State 
v.  Martin,  30  Wis.  216. 

In  the  next  place,  the  words  "what  reason,"  referred  to  in  the 
second  objection,  were,  in  the  connection  in  which  they  were  used, 
synonymous  with  the  phrase  "what  cause,"  and  plainly  had  reference 
to  facts  within  Casey's  knowledge,  and  not  to  opinions  merely  which 
he  might  have  entertained.  Casey's  answer,  "Not  any  that  I  know 
of,"  was  more  in  the  nature  of  the  denial  of  a  fact  than  the  expression 
of  an  opinion. 

In  the  case  of  Wroe  v.' State,  20  Ohio  St.  460,  the  court  held  that 
"There  is  no  valid  objection  to  the  admission  of  the  evidence  of 
Smith  Davidson  as  to  the  dying  declarations  of  the  deceased.  The 
declaration  of  the  deceased,  in  speaking  of  the  fatal  wound,  that, 
'it  was  done  without  any  provocation  on  his  part,'  objected  to  as  being 
mere  matter  of  opinion.  Whether  there  was  provocation  or  not,  is  a 
fact,  not  stated,  it  is  true,  in  the  most  elementary  form  of  whicji 
it  is  susceptible,  but  sufficiently  so  to  be  admissible  as  evidence." 

The  conclusion  reached  in  that  case  is  sustained  in  principle  by  the 


224  Cases  on  Evidence 

cases  of  Rex  v.  Scaife,  i  M.  &  R.  551,  and  Roberts  v.  State,  5  Tex. 
Ap.  141,  and  the  precedent  it  affords  may,  as  we  believe,  be  safely 
followed  in  its  fairly  analogous  application  to  the  question  now  before 
us.     See,  also,  Whart.  Crim.  Ev.,  sec.  294. 

In  the  third  place,  the  declaration  was  complete  as  to  the  answers 
to  all  questions  which  it  purported  to  answer,  and  in  that  sense  it 
was  not  fragmentary  within  the  meaning  of  the  case  of  State  v.  Pat- 
terson, 45  Vt.  308  (12  Am.  R.  200).  Besides,  the  failure  of  Casey 
to  answer  the  last  question  was  sufficiently  explained  by  his  attending 
physician.  In  our  opinion,  therefore,  the  dying  declarations  of  Casey 
were  properly  admitted  in  evidence. 

Reversed  on  other  grounds. 


,  JONES  V.  STATE. 

32  Ark.  343.     (1889) 

Samuel  D.  Jones  was  tried  on  an  indictment  charging  him  with  the 
murder  of  Henry  W.  Keltner.  He  was  convicted  of  murder  in  the 
first  degree  and  appealed. 

Per  Curiam.  One  of  the  matters  argued,  though  not  raised  in 
proper  form,  is  the  alleged  error  of  the  court  in  excluding  the  tes- 
timony offered  as  to  the  dying  declaration  of  Keltner.  The  witness 
says  that  some  hours  after  the  shooting  Keltner  said  that  Samuel 
Hall  shot  him. 

A  mere  expression  of  opinion  by  the  dying  man  is  not  admissible 
as  a  dying  declaration,  and  it  is  immaterial  whether  the  fact  that  the 
declaration  is  mere  opinion  appears  from  the  statement  itself,  or 
from  other  undisputed  evidence  showing  that  it  was  impossible  for 
the  declarant  to  have  known  the  fact  state'd.  If,  upon  any  view  of 
the  evidence,  it  is  possible  for  the  declarant  to  know  the  truth  of 
what  he  states,  his  declarations,  being  otherwise  competent,  should 
be  received  and  considered  by  the  jury  in  the  light  of  all  the  evidence. 

In  the  case  at  bar  it  was  a  physical  impossibility  for  Keltner  to 
have  seen  who  shot  him,  and  the  consciousness  of  wrong  done  in  the 
killing  of  Hall's  father  made  him  swift  to  suspect  Hall  of  the  com- 
mission of  the  crime. 

The  facts  in  the  case  of  Nick  Walters  v.  State,  39  Ark.  225,  were 


Dying  Declarations  225 

very  similar  to  those  now  before  the  court,  and  the  declarations  in 
that  case  were  held  to  be  properly  admitted. 

Affirmed. 


McLEAN  V.  THE  STATE. 
16  Ala.  6/2.     (1849) 


The  plaintiff  in  error  was  indicted  for  the  murder  of  one  Marvin 
Whatley. 

Chilton,  J.  The  2nd,  3rd,  4th  and  6th  assignments,  which  relate 
to  the  inadmissibility  of  the  dying  declarations  of  the  deceased  as 
evidence,  may  be  considered  in  connection.  It  is  insisted  that  as  the 
deceased  had  not,  at  the  time  he  made  the  declarations  proved  by  the 
witness  Wade,  and  which  were  made  some  three  hours  before  his 
death,  given  any  evidence  by  his  declarations  that  he  was  aware  of 
the  near  approach  of  his  dissolution,  the  evidence  should  have  been 
excluded.  The  law  certainly  requires  that  to  render  dying  declara- 
tions admissible,  they  must  be  made  under  a  sense  of  impending 
death;  for  it  is  this  sense  of  his  danger  that  gives  to  the  declaration 
a  sanction  considered  equivalent  to  an  oath.  But  in  order  to  show 
that  the  party  was  sensible  of  his  danger,  it  is  not  indispensable  that 
he  should  state  it  at  the  time  he  makes  the  declarations,  or  at  any 
time.  "It  is  enough,"  says  Mr.  Greenleaf,  "that  it  satisfactorily  ap- 
pears, in  any  mode,  that  they  were  made  under  that  sanction,  whether 
it  be  directly  proved  by  the  express  language  of  the  declarant,  or  be 
inferred  from  his  evident  danger,  or  the  opinions  of  his  medical  or 
other  attendants,  stated  to  him,  or  from  his  conduct,  or  other  circum- 
stances of  the  case,  all  of  which  are  resorted  to  in  order  to  ascertain 
the  state  of  the  declarant's  mind."  Greenl.  Ev.  sec.  158.  So  in  An- 
thony v.  the  State,  Meig's  Rep.  265,  it  was  held,  "If  the  dying 
person  declare  that  he  knows  his  danger,  or  it  is  reasonably  to  be 
inferred  from  the  wound  or  his  state  of  illness,  that  he  was  sensible 
of  his  danger,  the  declarations  are  good  evidence."  i  East.  PI.  Cr. 
354,  Tinckler's  case;  ib.  357-8,  John's  case;  6  Car.  &  P.  386;  ib.  631 ; 
7  ib.  187;  Whar.  Amer.  Cr.  Law,  179-80;  Anthony  v.  State,  i  Humph, 
265;  Dunn  V.  The  State,  2  Pike  229;  i  Phil.  Ev.  C.  &  H.  notes, 
from  page  606  to  612,  where  the  authorities  are  collected,  Chitty's 
Crim.  Law,  569-70;  Roscoe's  Cr.  Ev.  25.     The  circumstances  under 


226  Cases  on  Evidence; 

which  the  declarations  are  made  must  be  shown  to  the  judge,  who 
is  to  determine  upon  the  admissibility  of  the  evidence,  i  Greenl.  Ev. 
sec.  i6o,  and  authorities  in  note  4,  page  257  (3rd  ed.)  ;  i  Leach,  504; 
Chitty's  Cr.  Law,  570;  Wharton's  C.  L.  183;  i  Stark.  Rep.  532;  3 
C.  &  P.  629.  We  think,  under  the  rule  of  law  as  above  laid  down, 
and  which  is  fully  sustained  by  authority,  the  facts  and  circum- 
stances shown  by  the  proof  as  set  out  in  the  bill  of  exceptions,  jus- 
tified the  court  in  admitting  the  declarations  of  the  deceased.  It  is 
needless  to  refer  to  these  facts  further  than  to  state,  that  the  deceased 
had  just  been  shot  down,  having  received  sixty  small  shot  in  his  body, 
penetrating  a  vital  part,  the  right  breast,  that  considerable  blood 
flowed  externally,  as  well  as  into  his  chest,  passing  thence  into  his 
mouth ;  that  he  did  not  speak  from  the  time  he  was  shot  down  until 
taken  to  the  house,  and  his  wounds  dressed;  that  he  was  in  extreme 
agony  and  suffering.  It  further  appears,  that  in  a  very  short  time 
after  he  made  the  declarations  to  the  witness.  Wade,  he  stated  to 
another  witness,  Mrs.  Graves,  that  he  must  die,  which  was  repeated. 
Under  such  circumstances,  if  the  deceased  was  sensible  of  anything, 
he  must  have  been  aware  that  death  was  immediately  to  follow,  and 
was  inevitable. 

It  is,  however,  objected  to  the  declarations  proved  by  Mrs.  Graves 
that  they  are  imperfect  and  were  not  completed  by  the  deceased,  and 
that  not  having  answered  all  he  intended  answering,  what  he  did  say 
should  be  excluded.  It  appears  that  this  witness,  a  short  time  before 
the  death  of  the  deceased,  and  after  he  stated  that  he  was  going  to 
die,  asked  him  who  shot  him — he  replied,  the  prisoner.  She  then 
asked  him  the  cause  of  it,  but  from  weakness  and  exhaustion,  the 
deceased  could  not  and  did  not  answer  her  question,  but  shook  his 
head.  It  is  no  objection  to  such  declarations,  that  they  were  made  in 
answer  to  leading  questions;  but  that  the  statement,  whatever  it  may 
be,  must  be  complete  in  itself;  for  if  incomplete — if  it  appear  that 
the  dying  man  intended  to  connect  his  statements  with  qualifications 
and  explanations,  so  remaining  incomplete  and  unexplained,  should 
be  excluded  from  the  jury,  i  Greenl.  Ev.  sec.  159,  p.  257;  Com- 
monwealth V.  Vass,  3  Leigh's  Rep.  786;  Rex  v.  Fagent,  7  C.  &  P. 
238.  The  declaration,  however,  in  this  case,  was  complete,  and  it  is 
not  shown  that  he  intended  or  desired  to  connect  it  with  any  other 
fact  or  circumstance,  explanatory  of  it.  He  simply  stated  that  the 
prisoner  shot  him,  without  attemping  to  explain  the  circumstances 
attending  it. 

Reversed  on  other  grounds. 


Dying  Deci.arations  2^7 

STATE  V.  WILLIAMS  et  al. 
67  N.  C.  12.     (1872) 

The  prisoners  were  indicted  in  several  counts,  Edward  Williams 
for  the  murder  of  Silas  Avery,  and  Mary  Ann  Avery  for  being  acces- 
sory before  the  fact.  1 

It  was  in  evidence  that  the  deceased  was  shot  after  dark,  in  his  house, 
by  some  one  standing  outside,  through  an  aperture  between  the  logs 
of  which  the  house  was  .built.  He  was  sitting  by  the  fire,  with  his 
side  near  the  aperture,  and  was  shot  in  the  side. 

On  the  trial,  the  State  proposed  to  give  in  evidence  the  dying 
declarations  of  the  deceased.  Upon  examination  of  witnesses  as  to 
his  condition  at  the  time  of  the  declarations,  and  the  circumstances 
attending  them,  his  Honor  held  that  the  deceased  was  in  extremis, 
and  the  declarations  were  admissible  as  dying  declarations.  There- 
upon a  witness  Lucina  Wainwright,  was  permitted  to  state  the  dec- 
larations of  the  deceased,  to  wit:  that  he  knew  who  shot  him.  It  was 
Edward  Williams  •  who  shot  me,  though  I  did  not  see  him."  The 
witness  further  stated  that,  in  reply  to  a  question  asked  the  deceased 
by  her  as  to  who  shot  him,  he  said,  "I  don't  know  what  those  poor 
creatures  shot  me  for;  it  was  Ed.  Williams  who  shot  me,  but  I  did 
not  see  him."  The  counsel  of  the  defendants  excepted  to  the  admis- 
sion of  the  testimony.  They  contended  that  the  declarations  should  be 
entirely  excluded  from  the  jury;  but  the  court  ruled  that  they  were 
admissible,  under  the  circumstances,  for  what  they  were  worth,  and 
charged  the  jury  to  be  careful  in  weighing  these  declarations,  but 
to  consider  them  in  connection  with  the  other  testimony  in  the  case, 
and  give  them  what  weight  they  were  entitled  to.  Defendants'  coun- 
sel again  excepted. 

Verdict  of  guilty.  Rule  for  a  new  trial  discharged.  Judgment,  and 
appeal  by  the  defendants. 

Rodman,  J.  The  admission  of  dying  declarations  is  an  exception 
to  the  general  rule  of  evidence,  which  requires  that  the  witness 
should  be  sworn  and  subject  to  cross-examination.  The  solemnity  of 
the  occasion  may  reasonably  be  held  to  supply  the  place  of  an  oath. 
But  nothing  can  fully  supply  the  absence  of  a  cross-examination. 
In  consequence  of  this  absence,  such  declarations  are  often  defective 
and  obscure.  Hence,  several  Judges  have  felt  it  a  duty  to  say  that 
they  should  be  received  with  much  caution,  and  that  the  rule  which 
authorizes  their  admission  should  not  be  extended  beyond  the  reasons 


228  Cases  on  Evidence 

which  justify  it.     (See  note  to  Rex  v.  John,  2  Leading  Crim.  Cases  ' 
396.    Regina  v.  Hinds,  Bell,  C.  C.  256.    Regina  v.  Jenkins,  Law  Rep. 

1  C.  C.  I  Phil.  Ev.  292,  and  opinion  of  Lord  Denman  in  Sussex  Peer- 
age Case,  II  Clark  &  Fin.  112.)  And  this  is  the  more  important 
as  such  declarations  when  received,  have  great,  and  sometimes  undue 
weight  with  juries. 

It  is  settled  on  authority  and  is  consistent  with  reason,  that  if  the 
declarant  would  not  have  been  permitted  to  testify  had  he  survived 
either  because  he  was  too  young  to  comprehend  the  nature  of  an 
oath,  or  was  disqualified  by  infamy,  or  imbecility  of  mind,  his  dying 
declarations  are  inadmissible.  Rex  v.  Pike,  3  Car.  &  P.  598.  Regina 
V.  Perkins,  2  Moody  C.  C.  135.     Rex  v.  Drummond,  i  Leach  C.  C. 

337-38. 

It  is  equally  clear  that  such  declarations  are  admissible  only  to 
those  things  to  which  the  declarant  would  have  been  competent  to 
testify  if  sworn  in  the  case.  Consequently,  if  they  be  not  the  state- 
ment of  a  fact,  but  merely  the  expression  of  the  opinion  of  the  de- 
ceased, they  are  inadmissible.    And  so,  if  merely  hearsay,  or  irrelevant. 

2  Lead.  Cr.  Cas.  404.  Rex  v.  Sellers,  Carrington*s  Crim.  Law,  233. 
Oliver  v.  The  State,  17  Ala.  587.    Johnson  v.  The  State,  Id.  687. 

It  is  contended  for  the  prisoners,  that  the  declarations  in  this  case 
were  nothing  more  than  the  expression  of  an  opinion  or  belief. 

The  case  states  that  Lucina  Wainwright  testified  that  the  deceased 
said:  "He  knew  who  shot  him.  To  which  she  replied  that  she  did 
not  know.  Then  deceased  said,  it  was  Edward  Williams,  though  I 
did  not  see  him."  Further,  in  reply  to  a  question  by  witness  as  to 
who  shot  him,  deceased  said,  "I  don't  know  what  those  poor  creatures 
shot  me  for.  It  was  Ed.  Williams  who  shot  me,  thought  I  did  not 
see  him." 

The  case  further  states,  that  the  deceased  was  shot  after  dark, 
while  sitting  in  his  house  at  the  fire-place;  with  his  right  side  near 
an  aperture  between  the  logs  of  the  outer  wall,  about  three  inches 
wide.  The  shooting  was  done  through  the  aperture  by  some  person 
standing  on  the  outside  of  the  house.  The  wounds  were  in  the  right 
side  and  wrist. 

It  was  said  for  the  State  that  every  allegation  of  the  identity  of 
a  person  is  necessarily  the  expression  of  an  opinion  only,  because 
it  is  a  conclusion  drawn  from  a  comparison  of  the  appearance  of 
the  person  at  one  time,  with  the  recollection  of  his  appearance  at 
some  other  time.     This  is  true;  but  the  admission  of  such  evidence 


Dying  Declarations  229 

is  an  exception  to  the  general  rule  excluding  opinions,  founded  on  the 
necessity  of  the  case.     Best  on  Evidence,  sec.  349. 

But  there  must  be  some  limit  to  the  exception;  a  witness  cannot 
be  allowed  absolutely  to  substitute  his  judgment  for  that  of  the  tri- 
bunal to  whom  the  law  has  committed  the  decision  of  the  fact.  Best 
Ev.  sec.  344-5-6.  We  think  the  limit  may  be  drawn  without  any 
difficulty,  and  consistently  with  the  habitual  practice  of  courts. 
Whenever  the  opinion  of  the  witness  upon  such  a  question,  or  on  one 
coming  under  the  same  rule,  is  the  direct  result  of  observation  through 
his  senses,  the  evidence  is  admitted.  As,  for  example,  when  a  wit- 
ness has  seen  a  person  or  object  at  several  times,  and  expresses  his 
opinion  as  to  the  identity  of  what  he  saw  at  one  time  with  what  he 
saw  at  another,  as  human  language  is  inadequate  to  convey  to  the 
mind  of  another  person  fully  and  accurately  the  impression  made 
upon  the  mind  of  the  witness  through  his  sense  of  sight,  his  opinion, 
as  the  result  of  that  impression  is  admitted  and  is  entitled  to  more  or 
less  weight  according  to  the  circumstances.  And  although  opinions, 
as  derived,  may  sometimes  be  erroneous,  yet  they  are  not  generally 
so,  and  when  carefully  weighed  are  sufficiently  reliable  for  practical 
use  in  the  ordinary  affairs  of  life.  The  witness  does  not  unnecessarily 
substitute  his  judgment  for  that  of  the  tribunal. 

But  if  the  opinion  of  the  witness  is  the  result  of  a»  course  of  rea- 
soning from  collateral  facts,  it  is  inadmissible.  As,  for  example,  if  at 
the  time  to  which  the  question  of  identity  is  applied  he  did  not  see  or 
have  the  testimony  of  any  sense  as  to  the  person  in  question,  but 
believed  it  to  have  been  him  because  he  might  have  been  there,  and 
had  a  motive  to  have  been  there  and  to  have  done  the  act  alleged. 
In  such  a  case  the  tribunal  is  as  competent  to  reason  out  the  resultant 
opinion  as  the  witness  is;  and  by  the  theory  of  the  law,  it  alone  is 
competent  to  do  so.  To  allow  any  influence  of  the  opinion  of  the 
witness  would  be  unnecessarily  to  substitute  him  to  the  function  of 
the  tribunal. 

Now  to  apply  these  views  to  the  language  of  the  deceased,  must 
his  words  reasonably  be  understood  to  express  an  opinion  as  to  the 
identity  of  his  assailant  with  the  prisoner,  as  the  direct  result  of 
observation  through  his  senses,  or  any  of  them?  The  deceased  ac- 
companied each  declaration  that  it  was  Williams  with  the  quaHfica- 
tion,  "but  I  did  not  see  him."  He  appears  to  have  had  in  his  mind 
an  idea  of  the  distinction  which  I  have  been  endeavoring  to  draw, 
and  to  have  wished  to  exclude  the  conclusion  that  his  opinion  was 
anything  more  than  one   founded  on  an  inference   from   facts   and 


230  Casss  on  Evidence; 

motives  which  he  may  have  supposed  to  exist,  but  which  even  if 
they  were  in  evidence  on  the  trial  (as  to  which  the  case  is  silent), 
do  not  affect  the  present  question.  The  deceased  excludes  sight  as  a 
source  of  his  opinion.  A  court  is  not  at  liberty  to  conjecture,  that 
he  might  have  heard  the  prisoner  and  identified  him  in  that  way, 
especially  as  there  is  no  suggestion  of  that  sort  in  the  evidence. 

We  think  that,  whether  we  take  the  words  of  the  deceased  alone, 
or  in  connection  with  the  circumstances  of  the  assault,  they  do  not 
purport,  and  were  not  meant  to  state,  the  identity  of  Williams  with 
the  assailant,  as  a  fact  known  through  the  senses,  and  that,  conse- 
quently, they  were  inadmissible. 

The  learned  counsel  who  represented  the  State  cited  State  v.  Ar- 
nold, 13  Ire.  184,  as  in  point.  There  is  an  obvious  distinction  between 
that  case  and  this.  In  that,  the  deceased  did  not  say  that  he  did 
not  see  the  prisoner;  and  it  was  possible  that  he  did  see  him.  The 
evidence  in  that  case  also  suggested  the  possibility  that  his  sense  of 
hearing  contributed  to  his  identification  of  the  prisoner.  Moreover, 
in  that  case  the  exclamation  of  the  deceased,  being  immediate  upon 
the  shooting,  was  admissible  as  part  of  the  res  gestce.  i  Greenl.  Ev. 
sec.  156.  Com.  v.  McPike,  3  Gushing,  181.  State  v.  Shelton,  2  Jon. 
360. 

It  was  contended  for  the  State  that  as  upon  the  face  of  the  dec- 
larations of  the  deceased,  it  was  possible  that  he  might  have  iden- 
tified the  prisoner  through  hearing,  the  Judge  ought  to  have  left  them 
to  be  weighed  by  the  jury  and  disregarded  if  worthless.  But  it  is 
the  inflexible  rule  that  the  Judge  must  decide  all  preliminary  questions 
touching  the  competency  of  evidence.  The  instances  and  authorities 
for  this  are  so  numerous  and  familiar  that  it  is  unnecessary  to  refer 
to  them. 

From  this,  however,  it  is  contended  that  the  decision  of  the  Judge 
in  this,  as  in  analogous  cases,  comprised  a  decision  both  of  fact  and  of 
law. 

1.  Of  fact;  as  to  what  were  the  declarations  of  the  deceased,  and 
as  to  the  circumstances  under  which  they  were  made. 

2.  Of  law ;  were  the  declarations  admissible  alone,  or  in  connec- 
tion with  the  circumstances? 

On  the  first  question  the  Judge's  finding  was  final.  On  the  second 
it  was  subject  to  review. 

I  will  give  a  single  illustration  only  of  the  doctrine  here  stated. 
The  declarations  of  a  deceased  person,  made  in  contemplation  of 
impending  death,  are  admissible.     It  is  settled  that  the  Judge  passes 


Dying  Declarations  231 

upon  the  preliminary  question  of  their  admissibility.  It  is  equally 
well  settled  that  in  doing  so  he  finds  the  circumstances  under  which 
they  were  made;  and  also  whether,  considering  the  circumstances, 
they  were  made  in  contemplation  of  impending  death.  This  last  is  a 
question  of  law.  Regina  v.  Smith,  Leigh  &  Cave,  C.  C.  627.  Don- 
nelly V.  State,  2  Dutcher,  601.  Starkie  v.  The  People,  17  111.  24-25. 
Rex  V.  Welbourn,  i  East.  P.  C.  358.  Rex  v.  Hucks,  i  Stark.  523. 
2  Crim.  Cases,  400.  The  State  v.  Arnold,  ubi  sup.,  is  also  to  that 
efTect. 

We  think,  therefore,  that  the  Judge  properly  undertook  to  decide 
the  question  of  admissibility;  but  that  (for  the  reasons  given)  he 
decided  it  erroneously. 

Readk,  J.      Dubitante. 

Per  Curiam.  Venire  de  novo. 


COMMONWEALTH  v.  MATTHEWS. 
8p  Ky.  28/.     (1889) 

Holt,  J.  WilHam  Matthews  was  tried  upon  the  charge  of  man- 
slaughter for  killing  Henry  Alves  by  shooting  him.  The  jury  failing 
to  agree,  were  discharged,  and  there  has  never  been  any  final  disposi- 
tion of  the  case.  During  the  progress  of  the  trial  the  Commonwealth 
excepted  to  certain  decisions  of  the  court  upon  legal  points,  and  by 
this  appeal  questions  their  correctness. 

The  accused  was  allowed  over  the  objection  of  the  Commonwealth, 
to  prove  as  a  dying  declaration  what  the  injured  party  said  after 
the  shooting  as  to  the  circumstances  of  it.  It  is  urged  that  the  proper 
foundation  was  not  laid  for  its  introduction,  and  that  the  statement 
was  in  itself  incompetent.  It  was  proven  that  about  fifteen  minutes 
after  he  was  shot  the  deceased,  when  lying  upon  the  ground  bleeding 
and  suffering,  said  that  he  hoped  he  would  live  long  enough  to  take 
the  gun  home,  and  that  he  died  in  about  twenty  minutes.  The  wit- 
ness says  that  he  did  not  say  whether  he  believed  he  would  die  or 
recover,  and  that  he  (the  witness)  did  not  know  whether  he  was 
conscious  or  not  when  he  made  the  statement. 

It  is  well  settled  that  a  statement  to  be  admissible  as  a  dying  dec- 
laration must  be  made  when  the  party  is  in  extremis,  and  has  given 
up  all  hope  of  this  life;  but  whether  this  be  so  or  not  may  be  de- 


232  Cases  on  Evidence 

termined  not  only  by  what  he  may  say,  but  by  his  evident  danger  and 
all  the  surrounding  circumstances.  The  injured  party  need  not,  in  ex- 
press words,  declare  that  he  knows  he  is  about  to  die,  or  make  use  of 
equivalent  language.     (Peoples  v.  Commonwealth,  87  Ky.  487.) 

Tested  by  this  rule,  we  think  the  statement  in  this  instance  was 
made  under  a  sense  of  impending  death  and  that  what  the  injured 
party  then  said  also  shows  he  was  conscious  not  only  of  it,  but  of 
what  he  was  saying  as  to  the  transaction.  The  statement,  in  sub- 
stance, was  that  he  and  the  accused  were  playing  and  that  it  was  an 
accident. 

To  be  competent  as  a  dying  declaration,  the  statement  must  not 
only  relate  to  the  immediate  circumstances  of  the  transaction  resulting 
in  the  injury,  but  it  must  detail  facts,  and  not  the  opinion  of  the 
declarant.  In  our  opinion,  the  statement  in  this  instance  conforms 
to  this  rule.  It  is  unlike  the  case  where  the  injured  party  declared 
that  he  had  been  killed  for  nothing.  This  was  purely  his  opinion 
and  inference.  Here  the  injured  man  said  that  he  and  the  accused 
were  engaged  in  play,  and  that  the  shooting  was  an  accident.  This, 
in  our  opinion,  was  the  statement  of  a  fact,  more  than  the  giving 
of  an  opinion,  and  the  court  properly  allowed  it  to  be  proven. 

This  opinion  is  ordered  'to  be  certified  to  the  lower  court. 


MOORE  V.  STATE. 
12  Ala.  764.     (1848) 


The  plaintiflF  in  error,  was  indicted  and  convicted,  in  the  Circuit 
Court  of  Tallapoosa  County,  for  the  murder  of  her  husband.  In  the 
course  of  the  trial,  a  bill  of  exceptions  was  taken,  and  this  cause 
brought  to  this  court  by  writ  of  error. 

The  bill  of  exceptions  discloses  the  following  facts.  The  wounds 
of  which  the  deceased  died,  appeared  to  be  given  with  the  edge  of  an 
axe;  one  of  them  was  on  the  front  of  the  head,  on  the  left  side,  and 
in  length  about  the  width  of  an  axe;  that  it  cut  through  the  skull 
into  the  brain.  His  physician  reached  him  within  thirty-six  or  forty 
hours  after  the  wound  was  inflicted ;  he  was  breathing,  but  insensible. 
The  wound  was  dressed,  and  the  deceased  appeared  to  revive.  He 
was  asked  if  he  felt  better,  to  which  he  replied  no.  These  were  facts 
deposed  to  by  the  physician,  who  also  stated  that  he  thought  him  in 


Dying  Dsci,arations  233 

his  right  mind,  but  said  that  a  man  whose  brain  had  been  injured, 
as  his  had,  might  speak  rationally  one  moment,  and  be  entirely  out  of 
his  mind  the  next. 

The  State  then  offered  a  witness,  to  prove,  that  on  the  evening 
of  the  same  day  he  took  some  nourishment  to  the  deceased,  and 
requested  him  to  eat,  stating  that  if  he  would  he  would  get  well. 
The  deceased  shook  his  head,  and  said  no.  The  witness  then  said  to 
him,  "do  you  know  that  Mrs.  Moore  done  it?"  The  deceased  an- 
swered "oh  yes,  well  enough — well  enough."  To  this  evidence,  the 
prisoner  objected,  but  the  objection  was  overruled.  The  deceased 
lived  some  four  or  five  days  after  the  above  declaration  was  made ;  and 
another  witness  testified  that  some  days  after  the  above  declaration  was 
made,  the  deceased  stated,  that  Mrs.  Moore  "did  not  do  it." 

The  court  charged  the  jury,  that  the  dying  declaration  of  the  de- 
ceased owing  to  the  condition  of  his  mind,  at  the  time  they  were 
made,  should  not  be  regarded  by  them,  as  he  spoke  but  little,  and  in 
detached  sentences.  At  any  rate,  that  what  one  witness  stated,  was 
neutralized  by  what  was  stated  by  the  other,  if  they  were  of  equal 
credibility,  and  that  they  should  not  operate  against  the  accused.  To 
which  charge  the  prisoner  excepted;  and  the  bill  of  exceptions,  with 
the  matters  therein  contained,  are  here  assigned  for  error. 

Dargan,  J.  It  is  well  settled,  that  in  the  trial  of  cases  for  homi- 
cide, the  declarations  of  the  deceased,  made  under  the  belief  that  his 
end  is  near,  are  admissible,  not  only  to  designate  the  party  who  com- 
mitted the  crime,  but  also  to  detail  the  circumstances  under  which  it 
was  done.  But  these  declarations  must  be  made  when  the  belief 
of  death  is  present  to  the  mind  of  the  declarant,  and  when  he  be- 
lieves there  is  no  hope  of  recovery,  but  that  he  must  die  of  the 
wounds  or  injury  received.  Declarations  made  under  such  circum- 
stances are  considered  as  made  under  circumstances  equally  solemn 
as  if  made  under  the  obligations  of  an  oath,  and  are  admissible.  But 
it  is  the  duty  of  the  court  to  determine,  in  the  first  place,  upon  the 
admissibility  of  such  declarations,  and  then  it  is  for  the  jury  to  de- 
termine upon  the  weight  or  credibility  of  them,     (i  Greenl.  Ev.  190.) 

The  facts  disclosed  by  the  record,  in  this  cause,  must  satisfy  any 
mind  that  the  declarations  were  made  at  a  time  when  the  deceased 
was  without  hope  of  life,  on  earth,  and  under  the  belief  of  impending 
death.  There  was  no  error,  therefore,  in  permitting  the  declarations 
to  go  to  the  jury. 

But  it  is  objected,  that  the  relation  of  husband  and  wife,  existing 
at  the  time  between  the  accused  and  the  deceased,  rendered  the  dec- 


234  ■  Cases  cn  Evidence 

larations  incompetent  proof.  This  is  not  the  law.  One  of  the  first 
cases  in  which  the  question  arose,  upon  the  admissibility  of  dying 
declarations,  was  that  of  Woodcock,  and  the  deceased  was  his  wife. 
Her  declarations  were  received  as  evidence.  (2  Starkie  Ev.  458.) 
And  it  is  well  settled  that  a  wife  may  be  a  witness  in  a  criminal 
proceeding  against  her  husband  for  injuries  done  to  her  person;  and 
there  is  no  reason  whatever,  why  a  husband  should  not  be  a  compe- 
tent witness  against  his  wife,  for  injuries  done  him.  But  in  the 
charge  of  the  court,  as  given,  there  is  error.  It  must  be  borne  in 
mind,  that  the  evidence  showed,  that  the  deceased  might  be  rational 
at  one  moment — insane  or  irrational  at  another.  On  one  day  he 
said,  in  answer  to  the  question,  "do  you  know  that  Mrs.  Moore  did 
it?"  "Oh  yes,  well  enough,  well  enough."  At  a  subsequent  day  it 
was  testified,  that  he  said  she  "did  not  do  it."  It  may  be  fairly  in- 
ferred, that  at  one  time  he  accused  her  as  the  guilty  agent,  and  at  a 
subsequent  time  acquitted  her  of  guilt. 

We.  conceive  the  rule  to  be,  that  the  dying  declarations  of  the 
deceased  may  be  given  in  evidence,  as  well  to  acquit  as  to  convict  the 
accused,  and  they  are  not  limited,  as  evidence  in  favor  of  the  State 
alone.     (See  Greenl.  Ev.  190;  Rex  v.  Scaife,  i  Mood.  &  R.  551.) 

Here  the  declarations  of  the  deceased  were  inconsistent  with  each 
other.  There  was  then  a  direct  conflict  of  testimony.  It  was  the 
province  of  the  jury  to  weigh  the  testimony,  to  reconcile  it  if  they 
could,  and  if  it  could  not  be,  then  to  determine  which  to  believe. 
The  declarations  of  the  deceased,  if  made,  as  stated  in  the  bill  of 
exceptions  were  in  direct  conflict  with  each  other,  and  it  was  the  duty 
of  the  jury  to  determine  which  declaration  was  true,  or  to  which 
they  gave  credit  as  true.  The  charge  of  the  court  took  from  them 
this  duty,  and  determined  that  the  contradictory  declarations  of  the 
deceased  neutralized  each  other.  Whether  they  did  or  not,  or  whether 
either,  or  which  one  was  true,  was  by  law,  the  duty  of  the  jury  to 
determine — not  that  of  the  court;  and  for  this  error,  the  cause  is  re- 
versed, and  remanded,  that  the  prisoner  may  be  again  tried,  unless 
in  the  mean  time,  she  be  discharged  by  due  course  of  law. 


Dying  Declarations  235 

STATE  V.  BELCHER. 
13  S.  C.  459-     (1880) 

McGowAN,  A.  J,  William  Belcher  was  indicted  for  the  murder 
of  his  wife,  Elizabeth.  The  indictment  contained  two  counts,  one  for 
murder  by  actual  violence — beating  and  kicking — and  the  other  by 
neglecting  to  provide  necessaries  for  her  when  she  was  sick  and 
helpless,  from  which  neglect  she  died.  The  jury  found  him  guilty  on 
the  first  count,  and  he  appeals  to  this  court  for  a  new  trial. 

The  first  and  second  exceptions  relate  to  the  admissibility  of  the 
statements  of  the  deceased  as  proved  by  Dr.  Harrison  and  will  be 
considered  together.  The  judge  reports  that  "Dr.  W.  A.  Harrison 
testified  that  he  visited  deceased  as  a  physician,  April  21st,  1879; 
was  called  in  to  see  her  at  Dr.  Nesbitt's ;  she  was  suflfering  pain 
and  in  a  wretched  condition ;  made  an  examination ;  found  her  gen- 
eral appearance  indicated  anemia ;  her  appetite  was  good ;  she  may 
have  been  in  that  condition  for  months.  She  said  her  condition  was 
caused  by  her  husband;  he  threw  her  down;  jumped  on  her  womb, 
and  there  remained  on  her;  beat  her  on  her  breast  and  sides.  She 
had  been  in  the  condition  in  which  he  then  saw  her  ever  since.  She 
thought,  at  the  time  she  would  then  die.  The  doctor  then  gave  his 
opinion  that  the  eflFects  she  exhibited  would  follow  the  treatment  she 
said  she  received.  This  physician  further  said  that  the  deceased  was 
suffering  from  peritonitis  (chronic),  and  had  some  symptoms  of 
cancer.  He  mentioned  symptoms  of  both  diseases,  in  detail,  and  con- 
cludes, that,  in  his  opinion  as  a  medical  man,  the  woman  died  from 
the  treatment  she  received  from  her  husband."  The  admission  of 
this  testimony  was  objected  to,  and  the  objection  is  renewed  here 
upon  several  grounds.  First.  It  is  insisted  that  this  statement  of 
the  deceased  should  not  have  been  received,  for  the  reason  that  the 
deceased  was  the  wife  of  the  accused,  and  if  living,  would  not  have 
been  a  competent  witness  against  her  husband,  being  excluded  by  sec- 
tion 415  of  the  code.  The  preamble  of  the  code  declares  that  "the 
second  part  relates  to  civil  actions  in  the  courts  of  this  state."  The 
first  sub-division  of  Sec.  415  provides,  generally,  that  "the  husband 
and  wife  shall  be  competent  and  compellable  to  give  evidence,  the 
same  as  any  other  witness,  except  as  hereinafter  stated."  The  second 
sub-division,  manifestly  for  the  purpose  of  excluding  the  inference 
that  the  provisions  of  the  section  might  be  construed  as  applying  to 
criminal  actions,  declares  that  "nothing  herein  contained  shall  render 


236  Cases  on  Evidence 

any  husband  or  wife  competent  or  compellable  to  give  evidence  for 
or  against  the  other,  in  any  criminal  action  or  proceeding,  except,"  &c. 
These  provisions,  taken  together,  leave  the  law  of  evidence  in  criminal 
proceedings  unchanged,  and  by  the  comrnon  law,  the  declarations  of 
the  wife,  "m  articulo  mortis"  are  admissible  against  the  husband  on 
trial  for  the  murder  of  his  wife,  i  Phil.  Ev.  251;  Roscoe's  Cr.  Ev. 
118. 

The  evidence  is  also  objected  to  on  the  ground  that  they  were  not 
"dying  declarations."  Hearsay  is  evidence  of  facts  with  which  the 
witness  is  not  acquainted,  but  which  he  merely  states  from  the  re- 
lation of  others,  and  is  inadmissible  for  the  double  reason  that  the 
party  originally  stating  the  facts  does  not  speak  under  oath,  and  the 
party  against  whom  the  evidence  is  offered  has  no  opportunity  to 
cross-examine  the  party  making  the  statements.  The  only  case  in  the 
whole  range  of  the  criminal  law  where  evidence  is  admissible  against 
the  accused  without  an  opportunity  of  cross-examination,  is  that  of 
"dying  declarations"  in  cases  of  homicide,  and  they  are  only  admis- 
sible from  the  necessity  of  the  case,  and  when  made  in  extremity — 
when  the  party  is  at  the  point  of  death,  and  conscious  of  it — when 
every  hope  of  this  world  is  gone,  and  every  motive  to  falsehood  is, 
silenced  by  the  most  powerful  considerations  to  speak  the  truth.  For 
the  reason  that  the  admission  of  such  statement  is  exceptional,  they 
ought  always  to  be  excluded  unless  they  come  within  the  rule  in  every 
respect.  State  v.  Quick,  15  Rich.  342;  State  v.  McElvoy,  9  S.  C. 
211;  Roscoe's  Cr.  Ev.  31.  The  testimony  of  Dr.  Harrison  as  to  the 
statements  of  the  deceased  to  him,  does  not  come  within  the  definition 
of  dying  declarations,  and  was  mere  hearsay.  He  did  not  witness  the 
acts  complained  of,  but  only  related  what  she  told  him  had  taken 
place.  She  was  afflicted  with  a  lingering  disease.  Her  statement  was 
made  April  21,  and  she  did  not  die  until  July  12,  nearly  three  months 
after.  It  does  not  appear  that  the  statement  was  made  in  extremity; 
she  said  she  thought  at  the  time  the  violence  was  inflicted  that  "she 
would  then  die,"  but  she  did  not  say  that,  at  the  time  she  made  the 
statement,  she  considered  herself  in  the  very  presence  of  death — soon 
to  occur. 

The  judgment  of  the  Circuit  Court  is  set  aside,  and  a  new  trial 
granted. 

WiivLARD,  C.  J.,  and  McIvER,  A.  J.,  concurred. 


Declarations  Riclating  to  Pedigree  237 

DAVIS  V.  COMMONWEALTH. 
P5  Ky.  19.     (1893) 

Chiee  Justice  Bennett  delivered  the  opinion  of  the  court. 

The  appellant  having  been  convicted  of  the  crime  of  murdering 
Viona  Pack  by  the  Lawrence  Circuit  Court,  he  appeals  and  complains 
as  follows:  First,  that  the  court  erred  in  not  allowing  him  to  prove 
by  G.  W.  Miller  that  Granville  Pearl  confessed  to  him  on  his  death- 
bed that  he,  Pearl,  killed  Viona  Pack.  It  seems  to  us  that  admissions 
and  confessions  as  to  competency  stand  upon  the  same  footing.  Ad- 
missions cannot  be  used  in  evidence,  except  against  the  person  making 
them  in  an  issue  between  him  and  another  person,  wherein  the  truth 
of  the  admissions  is  involved,  or  against  his  privies  claiming  through 
him.  And  confessions  are  incompetent  evidence  except  against  a 
person  charged  with  crime,  or,  in  a  proper  state  of  case,  against 
his  confederates.  Nor  is  the  proposed  evidence  competent  as  a  dying 
declaration,  because  such  evidence  is  only  competent  when  it  comes 
from  a  declarant  whose  personal  injuries  by  another  have  resulted 
in  death,  and  the  declaration  must  be  confined  to  the  manner  and 
circumstances  of  the  injury  and  to  the  person  that  did  it. 

The  judgment  is  affirmed. 


DECLARATIONS  RELATING  TO  PEDIGREE.i 

FULKERSON  v.  HOLMES. 

117  U.  S.  389-    (1885) 

This  was  an  action  of  ejectment.  The  defendants  in  error  were 
the  plaintiffs  in  the  Circuit  Court,  and  were  the  heirs  at  law  of  John 
Holmes,  deceased.  They  brought  the  action  in  August,  1871,  to 
recover  a  tract  of  three  thousand  acres  of  land  in  Lee  county,  in 
the  state  of  Virginia.  The  defendants  pleaded  the  general  issue. 
The  case  was  tried  by  a  jury,  and  there  was  a  verdict  for  the  plain- 
tiffs, on  which  the  court  rendered  judgment  and  the  defendants  sued 
out  this  writ  of  error. 


1  Hughes  on  Evidence,  p.  72. 


238  Cases  on  Evidence 

It  appeared  from  the  bill  of  exceptions  that  the  plaintiffs,  to  sus- 
tain the  issue  on  their  part,  offered  in  evidence  a  patent  from  the 
Commonwealth  of  Virginia  to  Samuel  Young,  dated  May  7,  1787, 
for  the  premises  in  controversy,  which  was  admitted  without  objec- 
tion. 

They  next  offered  a  deed  for  the  same  premises  from  Samuel  C. 
Young  to  John  Holmes,  dated  July  2,  19 18.  This  deed  recited  the 
grant  by  the  Commonwealth  of  Virginia  to  Samuel  Young  of  the 
premises  in  controversy,  that  Samuel  Young,  the  patentee,  had  died 
intestate,  that  Samuel  C.  Young,  the  grantor,  was  his  only  child  and 
heir,  and  that  the  title  to  said  lands  had  vested  in  him.  Appended  to 
the  deed  was  a  certificate  of  acknowledgment,  dated  July  15,  1819, 
at  the  Eastern  District  of  Pennsylvania,  purporting  to  have  been 
taken  by  Richard  Peters,  United  States  judge  for  the  district  of 
Pennsylvania,  and  signed  by  him.  The  deed  appeared  also  to  have 
been  witnessed  by  John  Shaw  and  John  Craige.  Immediately  after 
the  certificate  of  acknowledgment  appeared  what  purported  to  be  the 
receipt  of  Samuel  C.  Young  for  the  consideration  money  mentioned 
in  the  deed,  which  was  $10,400  signed  by  him  and  witnessed  by 
John  Craige.  The  plaintiffs  proved  the  handwriting  of  Judge  Peters 
to  the  certificate,  and  the  death  of  John  Shaw,  one  of  the  witnesses, 
which  took  place  more  than  fifty  years  before  the  trial.  Appended 
to  the  deed  was  the  following  certificate  of  registration: 

"Virginia:  At  the  court  begim  and  held  for  Lee  county,  at  the 
court-house  thereof,  on  the  15th  day  of  January,  1838,  this  indenture 
of  bargain  and  sale  for  land  between  Samuel  C.  Young,  of  the  one 
part  and  John  Holmes  of  the  other  part,  was  admitted  to  record  upon 
the  certificate  of  Richard  Peters,  judge  of  the  Pennsylvania  district 
of  the  United  States. 

J..  W.  S.  Morrison,  D.  C" 

The  deed  bore  the  following  indorsement : 

"Recorded  in  the  clerk's  office  of  the  County  Court  of  Lee,  in  book 
No.  7,  page  401. 
"Teste :  J.  W.  S.  Morrison,  D.  C." 

Mr,  Justice  Woods  delivered  the  opinion  of  the  court.  He  stated 
the  case  and  continued: 

It  is  first  assigned  for  error  that  the  Circuit  Court  "allowed  the 
deed  from  Samuel  C.  Young  to  John  Holmes  to  be  read  in  evidence 
without  instructing  the  jury  that  the  recitals  therein  in  respect  to  the 
death  of  Samuel  Young  and  the  heirship  of  Samuel  C.  Young  were 
not  evidence  against  the  defendants,  even  if  it  were  admissible  at 


DECLARATIONS  RELATING  TO   PBDICREE  239 

all,  without  proof  of  its  execution  or  possession  accompanying  and 
held  under  it." 

The  deed  of  Samuel  C,  Young  to  John  Holmes  was  rightfully  ad- 
mitted in  evidence,  as  an  ancient  deed,  without  proof  by  the  sub- 
scribing witnesses,  or  of  possession  by  the  plaintiffs  or  those  under 
whom  they  claimed.  When  offered  it  was  more  than  sixty  years  old ; 
it  was  produced  from  the  custody  of  the  heirs  of  John  Holmes,  the 
grantee,  who  claimed  the  lands  described  therein.  It,  as  well  as  the 
patent  for  the  same  land  from  the  Commonwealth  of  Virginia  to 
Samuel  Young,  was  shown  to  have  been  found  among  the  papers  of 
John  Holmes.  The  lands  described  therein  were  shown  to  have 
been  listed  for  taxation  to  John  Holmes,  or  to  his  heirs,  for  a  period 
beginning  with  the  year  1838  down  to  and  including  the  year  1875, 
which  was  after  the  bringing  of  this  suit;  and  it  appeared  that  during 
that  time  they  had  paid  the  taxes  assessed  on  said  lands,  or  the  same 
had  been  released  to  them  by  law.  It  was  further  shown  that  the 
judge  before  whom  the  acknowledgment  of  the  deed  had  been  made 
was  dead ;  that  his  signature  to  the  certificate  of  acknowledgment  was 
genuine;  that  the  deed  had  been  recorded  in  the  county  where  the 
lands  lay  for  more  than  forty-two  years  before  it  was  offered  in 
evidence ;  and  that  before  and  after  the  deed  was  put  upon  record  the 
lands  described  therein  were  reported  to  be  the  lands  of  John  Holmes, 
the  grantee,  and  his  heirs,  and  were  known  and  designated  in  the 
neighborhood  where  they  lay  as  the  "Holmes  plantation." 

This  state  of  facts  amply  justified  the  admission  of  the  deed  in 
evidence  as  an  ancient  document,  without  other  proof.  Caruthers  v. 
Eldridge,  12  Gratt.  670;  Applegate  v.  Lexington  &  Carter  County 
Mining  Co.,  decided  in  the  present  term,  ante,  255,  and  the  cases  there 
cited. 

The  question  is,  therefore,  fairly  presented,  whether  the  recitals 
made  in  the  deed  of  Samuel  C.  Young  to  John  Holmes,  to  the  effect 
that  Samuel  C.  Young,  the  patentee,  had  died  intestate,  leaving  one 
child  only,  namely  the  said  Samuel  C.  Young,  the  grantor,  were  admis- 
sible in  evidence  against  the  defendants,  who  did  not  claim  title  under 
the  deed. 

The  fact  to  be  established  is  one  of  pedigree.  The  proof  to  show 
pedigree  forms  a  well  settled  exception  to  the  rule  which  excludes 
hearsay  evidence.  This  exception  has  been  recognized  on  the  ground 
of  necessity;  for,  as  in  inquiries  respecting  relationship  or  descent, 
facts  must  often  be  proved  which  occurred  many  years  before  the 
trial  and   were   known  to  but   few   persons,   it   is   obvious   that   the 


240  Cases  on  Evidence 

strict  enforcement  in  such  cases  of  the  rules  against  hearsay  evi- 
dence would  frequently  occasion  a  failure  of  justice.  Taylor  on  Evi- 
dence, ed.  1872  sec.  571.  Traditional  evidence  is,  therefore,  admis- 
sible. Jackson  v.  Browner,  18  Johns.  37 ;  Jackson  v.  King,  5  Cowen, 
22^"];  Davis  v.  Wood,  i  Wheat.  6.  The  rule  is  that  declarations  of 
deceased  persons  who  were  de  jure  related  by  blood  or  marriage  to 
the  family  in  question  may  be  given  in  evidence  in  matters  of  pedigree. 
Jewell  v.  Jewell,  i  How.  219;  Blackburn  v.  Crawfords,  3  Wall.  175; 
Johnson  v.  Lawson,  2  Bing,  86;  Vowles  v.  Young,  13  Ves.  140,  147; 
Monkton  v.  Attorney-General,  2  Russ.  &  Myln.  147,  159;  White  v. 
Strother,  11  Ala.  720.  A  qualification  of  the  rule  is,  that,  before  a 
declaration  can  be  admitted  in  evidence,  the  relationship  of  the  de- 
clarant with  the  family  must  be  established  by  some  proof  independent 
of  the  declaration  itself.  Monkton  v.  Attorney-General,  2  Russ.  & 
Myln.  147,  156;  Attorney-General  v.  Kohler,  9  H.  L.  Cas.  653,  660; 
Rex  v.  All-Saints,  7  B.  &  C.  785,  789.  But  it  is  evident  that  but 
slight  proof  of  the  relationship  will  be  required  since  the  relationship 
of  the  declarant  with  the  family  might  be  as  difficult  to  prove  as  the 
very  fact  in  controversy. 

Applying  these  rules,  we  are  of  opinion  that  the  recital  in  the  deed 
of  Samuel  C.  Young  to  John  Holmes,  supported  as  it  was  by  the 
circumstances  of  the  case  shown  by  the  evidence,  was  admissible,  as 
tending  to  prove  the  facts  recited,  namely,  that  Samuel  Young  the 
patentee  was  dead,  and  Samuel  C.  Young,  the  grantor,  was  his  only 
child  and  heir. 

Judgment  affirmed. 


BLACKBURN  v.  CRAWFORDS. 

70  U.  S.  175-    (1865) 

Dr.  Crawford,  of  Prince  George's  County,  Maryland,  died  intestate 
in  December,  1859,  the  proprietor  of  large  landed  estates  there; 
Greenwood  Park,  Waring's  Grove,  Federal  Hill,  Westphalia,  Ran- 
leigh,  &c.  He  left  no  wife,  nor  child,  nor  brother  nor  sister  surviving 
him.  Claimants  to  such  estates,  however,  were  not  long  wanting.  On 
the  one  hand  were  relatives  of  the  name  of  Blackburn,  confessedly 
his  cousins-german ;  on  the  other  persons  bearing  his  own  respectable 
Scottish  name  of  Crawford;  George  Thomas  Crawford,  Mary  Eliza- 


Declarations  Rei^ating  to  Pedigree  241 

beth  Crawford,  Sarah  Jane  Crawford,  and  Anna  Victoria  Crawford, 
the  children  of  a  brother  Mr.  Thomas  B.  Crawford,  who  had  died 
before  him.  The  title  of  these  children — as  nephew  and  nieces,  and 
nearer  of  course  than  cousins — was  clear,  but  for  a  single  difficulty ; 
the  fact  that  their  legitimacy  was  called  in  question.  It  was  asserted 
that  their  mother  had  been  the  mistress,  not  the  wife  of  their  father. 
The  intercourse  of  the  parties  had,  confessedly,  in  its  origin  been 
irregular;  but  the  allegation  was  that  a  marriage  had  subsequently 
taken  place. 

To  prove  the  marriage,  the  counsel  of  the  children,  the  plaintiffs 
in  the  case,  offered  in  evidence  the  deposition  of  the  Rev.  J.  P. 
Donelan,  to  prove  that  he  had  frequently  heard  Sarah  Evans  say 
that  Mr.  T.  B.  Crawford  and  Elizabeth  Taylor  were  married.  In 
order  to  lay  a  foundation  for  this  testimony,  it  was  proved  aliunde 
that  Sarah  Evans  was  the  sister  of  Elizabeth  Taylor,  and  that  she 
had  been  dead  several  years.  The  testimony  was  admitted,  under 
objection  by  the  other  side. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 
The  first  exception  relates  to  the  admission  of  evidence  as  to  what 
Sarah  Evans  had  said  in  regard  to  the  marriage  of  her  sister,  Elizabeth 
Taylor  with  Mr.  Crawford.  Was  the  testimony  rightly  admitted? 
Greenleaf  says :  "It  is  now  settled  that  the  law  resorts  to  hear- 
say evidence  in  cases  of  pedigree,  upon  the  ground  of  the  interest 
of  the  declarants  in  the  person  from  whom  the  descent  is  made  out, 
and  their  consequent  interest  in  knowing  the  connections  of  the  family. 
The  rule  of  admission  is  therefore  restricted  to  the  declarations  of 
deceased  persons  who  were  related  by  blood  or  marriage  to  the  per- 
son, and  therefore  interested  in  the  succession  in  question.'* 

It  is  well  settled,  that  before  the  declarations  can  be  admitted,  the 
relationship  of  the  declarant  to  the  family  must  be  established  by 
other  testimony. 

Here  the  question  related  to  the  family  of  Dr.  Crawford.  The 
defendants  in  error  claimed  to  belong  to  the  family,  and  to  be  his 
nephew  and  nieces.  To  prove  this  relationship,  it  was  competent 
for  them  to  give  in  evidence  the  declarations  of  any  deceased  member 
of  that  family.  But  the  declarations  of  a  person  belonging  to  an- 
other family — such  person  claiming  to  be  connected  with  that  family 
only  by  the  intermarriage  of  a  member  of  each  family — rests  upon  a 
different  principle.  A  declaration  from  such  a  source  of  the  mar- 
riage which  constitutes  the  affinity  of  the  declarant,  is  not  such  evi- 
dence aliunde  as  the  law  requires. 


242  Cases  on  Evidence 

It  is  insisted  by  the  defendants  in  error,  upon  the  authority  of 
Moncton  v.  The  Attorney  General,  That  it  was  sufficient  to  show 
the  relationship  of  the  declarant  to  Elizabeth  Taylor.  As  we  under- 
stand that  case,  it  has  no  application  to  the  point  under  consideration. 
None  of  the  writers  on  the  law  of  evidence  have  given  it  so  wide  a 
scope.  Hubback  thus  states  the  principle  which  it  decides :  "It  is 
sufficient  that  the  declarant  be  connected  by  extrinsic  evidence  with 
one  branch  of  the  family  touching  which  his  declaration  is  tendered." 
Lord  Brougham  himself  said  in  that  case:  "I  entirely  agree  that,  in 
order  to  admit  hearsay  evidence  in  pedigree,  you  must,  by  evidence 
dehors  the  declarations,  connect  the  persons  making  them,  with  the 
family.  To  say  that  you  cannot  prove  the  declarations  of  A.,  who 
is  proved  to  be  a  relation  by  blood  of  B.,  touching  the  relationship  of 
B  with  C,  unless  you  have  first  connected  him  with  C,  is  a  propo- 
sition which  has  no  warrant,  either  in  the  principle  upon  which 
hearsay  is  let  in,  or  in  the  decided  cases."  If  it  had  been  proved 
by  independent  testimony  that  Sarah  Evans  was  related  by  blood 
to  any  branch  of  the  family  of  David  Crawford,  and  her  declarations 
had  been  offered  to  prove  the  relationship  of  another  person  claiming, 
or  claimed  to  belong  also  to  that  family,  this  case  would  be  in  point. 
But  the  declaration  of  Sarah  Evans,  offered  to  prove  that  her  sister 
was  connected  by  marriage  with  a  member  of  that  family,  was  neither 
within  the  principle  nor  the  language  of  that  authority. 

In  Edwards  v.  Harvey  an  issue  out  of  chancery  was  directed  to 
try  the  question  whether  "A.  B.,  from  whom  the  plaintiff  claimed, 
was  not  proved  to  be  related  to  C.  D.,  who  was  the  granting  party  in 
the  conveyance  of  the  plaintiff.'  A  new  trial  was  moved  for,  on  the 
ground  that  the  court  had  rejected  a  paper  offered  in  evidence  by  the 
plaintiff.  "It  was  a  pedigree  drawn  out  by  Bridget  Lloyd,  a  maiden 
lady,  deceased,  showing  that  C.  D.,  who  was  her  relative  was  related 
to  A.  B."  The  master  of  the  rolls  "refused  a  new  trial,  because  if 
Miss  Bridget  Lloyd's  pedigree,  written  by  herself,  were  evidence 
for  her  relation,  so  would  her  declaration  have  been,  to  show  that 
sh.e  was  herself  entitled  to  the  estate." 

In  Doe  V.  Fuller,  Chief  Justice  Best  said:  "If  there  were  no  other 
evidence  than  the  declarations  of  John  to  show  that  James  was  a 
member  of  the  family,  they  could  not  have  been  received,  as  that 
would  be  carrying  the  rule  as  to  the  admissibility  of  hearsay  evidence 
further  than  has  ever  yet  been  done,  viz.,  to  allow  a  party  to  claim  an 
alliance  with  a  family  by  the  hare  assertion  of  it." 

We  think  the  court  erred  in  admitting  the  testimony. 


Declarations  Relating  to  Pedigree  243 

Judgment  reversed,  with  costs,  and  the  case  remanded  to  the  Circuit 
Court,  with  an  order  to  issue  a  venire  de  novo. 


HARLAND  v.  EASTMAN. 
107  III  535'     (1883) 


This  is  an  action  of  ejectment  brought  by  appellee,  against  appel- 
lant, claiming  title  in  fee  to  lot  45,  block  37,  in  school  section  addition 
to  Chicago,  and  for  the  possession  thereof.     The  plea  is  not  guilty. 

Plaintiff  claims  that  one  Abraham  B.  Adams  was  the  owner  in  fee, 
and  seeks  to  show  title  in  himself  through  three  deeds,  executed,  one 
by  Enoch  E.  Adams,  one  by  Alfred  A.  Adams,  and  one  by  Adelaide  B. 
Pate,  each  purporting  to  convey  to  plaintiff  an  undivided  one-third 
of  said  lot.  The  proof  shows  that  Abraham  B.  Adams  died  in  1872 
or  1873,  and  these  deeds  were  made  in  1880  and  in  188 1.  To  show 
title  in  plaintiff  it  was  necessary  to  show  title  in  these  grantors.  To 
do  this  he  undertook  to  prove  that  these  three  grantors  constituted 
the  only  h^rs  at  law  of  Abraham  B.  Adams,  deceased.  To  this  end 
he  introduced  as  a  witness  J.  C.  Tucker,  who  testified  that'  he  lived  in 
Chicago  from  1856  to  i860,  "and  off  and  on  then  until  1875,"  when  he 
moved  back  to  Chicago,  and  had  lived  there  ever  since;  that  he  knew 
Abraham  B.  Adams  in  his  lifetime;  first  saw  him  in  1863;  he  then 
lived  on  this  property  and  had  a  wife  living  with  him,  and  witness 
saw  him  once  afterwards,  two  to  five  years  later;  that  witness  knew 
two  of  his  children ;  that  there  were  three,  Enoch  E.,  Alfred  A,  and 
Sarah;  that  Sarah  was  married,  and  afterwards  died,  some  thirty 
years  ago, — before  the  witness  knew  the  family;  that  witness  married 
a  daughter  of  Enoch  E.  Adams, — a  grand-daughter  of  Abraham  B. 
Adams ;  that  when  Sarah  died,  she  left  one  child,  who  married  one 
A.  B.  Pate,  and  is  now  living,  and  is  Mrs.  A.  B.  Pate;  that  Sarah 
left  no  other  child.  (At  this  stage  of  the  testimony  defendant  moved 
to  exclude  from  the  jury  this  testimony  as  to  Sarah  and  her  children. 
The  motion  was  denied,  and  defendant  excepted.)  The  witness  fur- 
ther testified  that  Enoch  Adams  and  Alfred  are  both  living,  now,  in 
the  State  of  Illinois,  and  that  Mrs.  Pate  lives  in  Ohio. 

On  cross-examination  the  witness  stated,  that  when  he  first  saw 
Abraham  B.  Adams,  in  1863,  the  wife  of  witness  was  with  him,  and 
thei  stayed  about  two  hours;  that  witness  then  lived  at   Cincinnati 


244  .      Cases  on  Evidence 

and  had  never  seen  him  before,  and  on  the  subsequent  visit  he  stayed 
about  an  hour, — ^and  this  is  all  the  acquaintance  he  had  with  him; 
that  he  has  no  personal  knowledge  of  his  death  or  his  wife's  death ; 
that  he  never  saw  Sarah  ,or  knew  her  or  her  family,  or  of  her  death, 
except  from  the  relatives  of  the  wife  of  witness;  that  he  never  heard 
that  Sarah  ever  had  more  than  one  child;  that  Abraham  B.  Adams 
was  married  twice;  that  Alfred  A.,  Enoch  E.,  and  Sarah  were  all 
children  by  his  first  wife;  that  when  witness  called,  as  above  stated, 
Abraham  B.  Adams  was  living  with  his  second  wife;  that  witness 
never  heard  of  any  children  by  her.    The  witness  then  stated  that  all 
he  knew  about  these  things  was  hearsay,  from  his  wife  and  relatives. 
Dickey,  J.     The  motion  for  a  new  trial  ought  to  have  been  sus- 
tained.    The  testimony  in  the  case  palpably  failed  to  show  that  the 
three  grantors  in  the  deeds  to  plaintiff  were  the  heirs,  and  only  heirs, 
of  Abraham  B,  Adams.     Facts  involved  in  a  question  of  pedigree 
may  be  established  by  proof  of  general  reputation  in  the  family,  or  by 
proof  of  what  deceased  members  of  the  family  have  said.    From  the 
necessity  of  the  case,  hearsay  evidence  of  certain  kinds  is  admissible 
in  establishing  matters  of  pedigree,  and  this  because  it  is  the  best  evi- 
dence of  which  the  nature  of  the  case  admits.     What  has  been  said 
by  deceased  members  of  the  family  is  admissible,  upon  th^  presump- 
tion that  as  such  members  they  knew,   from  general  repute  in  the 
family,  the  facts  of  which  they  speak.    Now  while  such  a  presumption 
as  to  the  husband  of  a  grandchild  of  the  intestate  may,  under  some 
circumstances,  prevail,  still  when  on  cross-examination,  it  is  shown 
that  two  of  the  children  of  the  intestate  are  living,  and  within  the 
reach  of  the  process  of  the  court,  it  will  not  do  to  say  that  the  tes- 
timony of  such  a  witness  shall  be  deemed  sufficient  where  he  shows 
he  has  no  personal  knowledge  on  the  subject'   and  fails  to  show  a 
general  reputation  in  the   family  in  support  of  what  he  has  heard 
and  merely  says  he  learned  so  and  so  from  conversations  with  his 
wife  and  her  relatives.    Such  conversations  have  been  such  in  extent 
and  variety,  and  may  have  been  held  under  such  circumstances,  as 
to  enable  a  witness  to  say  that  such  was  the  reputation  in  the  family, 
but  such  conversation  may  not  have  been  such.     The  witness  surely 
could  not  be  permitted  to  swear  to  any  specific  thing  which  his  wife, 
or  either  of  her  uncles,  had  said  in  his  hearing,  because  they  are  all 
living,  and  their  sworn  testimony  is  better  than  their  unsworn  state- 
ments, unless  all  of  them  taken  together,   with  their   surroundings, 
enable  him  to  say  such  was  the  accepted  state  of  the  case  in  the  family, 
or  such  was  the  uncontradicted  repute  in  the  family. 


Declarations  Relating  to  Pedigree  245 

Again  while  the  witness  says  Abraham  B.  Adams  had  three  chil- 
dren (Enoch,  Alfred  and  Sarah),  he  nowhere  says  distinctly,  that 
these  were  his  only  children;  and  while  he  undertakes,  in  speaking 
of  Sarah,  the  aunt  of  his  wife,  who  died  many  years  before  the  wit- 
ness knew  the  Adams  family  at  all,  to  say  she  left  only  one  child 
who  is  still  living,  and  the  wife  of  one  A.  B.  Pate,  he  nowhere  tells 
the  given  name  of  that  child,  or  shows  that  she  was  the  Adelaide  B. 
Pate  who  made  the  deed  to  plaintiff.  If  it  be  true  that  the  several 
grantors  in  these  three  deeds  were  really  the  only  heirs  at  law,  it  can 
readily  be  proven  by  these  three  living  witnesses.  While  the  wit- 
ness produced  is  a  relative  of  deceased  (Adams)  by  marriage,  yet 
his  own  testimony  shows  that  his  association  with  the  family  was  so 
slight  that  the  presumption  arising  from  that  relation  of  his  knowl- 
edge on  the  subject  is  entirely  rebutted  by  his  own  statements.  For 
this  reason,  if  for  no  other,  the  judgment  ought  to  be  reversed,  and 
another  trial  had. 

The  judgment  is  reversed  and  the  cause  remanded. 


FLORA  V.  ANDERSON. 
75  Fed.  Rep.  217.     (i8p6) 


Sage,  District  Judge.  The  complainant  sues  to  recover  two-twelfths 
of  the  estate  of  Nicholas  Longworth,  claiming  as  the  illegitimate 
son  of  Eliza  Longworth  Flagg,  under  the  will  of  Nicholas  Long- 
worth,  her  father,  executed  on  the  25th  of  March,  1859  and  under 
the  codicil  thereto,  executed  on  the  15th  day  of  January,  1862, 
whereby  he  devised  to  Larz  Anderson  his  son-in-law,  and  to  Joseph 
Longworth,  his  son,  who  were  named  as  executors,  two-twelfths 
of  his  estate,  in  trust  for  the  benefit  of  his  daughter,  Eliza  Longworth 
Flagg,  during  her  life  with  remainder  to  "the  issue  of  her  body  sur- 
viving her,"  and  in  default  of  such  issue  to  his  son,  Joseph  Long- 
worth,  and  his  grandson,  John  L.  Stettinus.  Nicholas  Longworth 
died  on  the  17th  of  Feb.  1863.  Eliza  Longworth  Flagg  died  De- 
cember 13,  1891,  without  issue  of  her  marriage.  To  maintain  his 
claim,  the  complainant  must  establish:  First,  that  he  is  the  illegiti- 
mate son  of  Eliza  L.  Flagg;  and,  second,  that  if  so,  he  is  entitled 
under  the  will  to  the  remainder  devised  to  "the  issue  of  her  body 
surviving  her." 


246  Cases  on  Evidence 

The  law  resorts  to  hearsay  evidence  in  cases  of  pedigree  upon  the 
ground  of  the  interest  of  the  declarants  in  the  persons  from  whom 
the  descent  is  made  out,  and  their  consequent  interest  in  knowing  the 
connections  of  the  family.  The  rule  of  admission  is,  therefore,  re- 
stricted to  the  declarations  of  deceased  persons  who  were  related  by 
blood  or  marriage  to  the  person,  and  in  that  way  interested  in  the 
succession  in  question.    Greenl.  Ev.  sec.  103. 

The  rule  that  hearsay  is  admissible  in  cases  of  pedigree  is  limited 
to  cases  of  legitimate  relationship.  In  such  cases  the  presumption  is 
that  declarations  by  deceased  members  of  the  family  are  true,  be- 
cause ordinarily  there  is  no  motive  for  false  statements,  as  there  is 
likely  to  be  in  cases  of  illegitimacy.  In  Crispin  v.  Doglioni,  3  Swab.  ^ 
Tr.  decided  by  Sir  C.  Cresswell  in  1863,  the  question  was  as  to  the 
right  of  succession  to  property,  the  decedent  having  been  a  citizen 
of  Portugal,  where  under  the  law,  bastards  inherited  from  the  father 
in  default  of  lawful  issue.  The  plaintiff  claimed  to  be  the  bastard 
son  of  the  decedent,  and  therefore  entitled  under  the  law  of  Portugal, 
to  his  personal  property.  The  defendant  was  a  sister  of  the  de- 
cedent, and  denied  that  the  plaintiff  was  his  son.  The  declarations 
of  a  brother  of  the  deceased,  tending  to  show  that  the  plaintiff  was 
the  bastard  son  were  offered.     The  judge  said: 

"I  can  well  understand  that  where  a  matter  is  likely  to  be  discussed 
and  well  known  in  a  family,  a  member  of  the  family  my  be  allowed 
to  give  evidence  of  it ;  but  in  this  case  plaintiff,  according  to  his 
own  account,  is  filius  nullius  by  our  law.  The  question  is  whether 
a  declaration  of  one  member  may  be  admitted  to  another  member 
of  having  had  intercourse  with  a  woman  and  having  had  a  child  by 
her.     I  think  it  ought  to  be  excluded." 

Where  a  relationship  is  acknowledged  as  a  matter  of  fact,  and  its 
lawfulness  is  only  disputed,  hearsay  from  members  of  the  family 
may  be  introduced  to  show  that  such  relationship  was  lawful  or  was 
not  lawful.  But  hearsay  cannot  be  introduced  to  establish  an  un- 
lawful relationship  per  se,  where  a  lawful  relationship  is  not  claimed. 
There  are  cases  in  which  testimony  as  to  declarations  of  members  of 
the  family  have  been  admitted  to  show  that  the  claimant  was  a  bastard. 
But  on  examination  it  will  appear  that  in  those  cases  the  testimony 
was  introduced,  not  to  show  bastardy  per  se,  as  a  ground  of  claim, 
but  to  dispute  a  claim  of  legitimacy.  Vowles  v.  Young,  13  Ves.  147; 
Goodright  v.  Moss,  Cowp.  593 ;  Murray  v.  Milner,  12  Ch.  Div.  845  ; 
Jewel  V.  Jewel,  i  How.  219;  Haddock  v.  Railroad,  3  Allen,  298.  In 
Doe  V.  Barton,  2  Moody  &  R.  28,  the  declarations  of  illegitimate  re- 


Declarations  Relating  to  Pedigree  247 

lations  were  rejected.  See,  also,  Barnnm  v.  Barnum,  42  Md.  251, 
304;  Richmond  v.  State,  19  Wis.  307;  and  Shoppert  v.  Nierle  (Neb.) 
63  N.  W.  383.  The  only  exception  to  the  rule  is  in  India,  where, 
under  Act  2  of  1855,  sec.  47,  declarations  of  illegitimate  members 
of  the  family,  and  also  of  persons  who,  though  not  related  by  blood 
or  marriage  to  the  family,  were  intimately  acquainted  with  its  mem- 
bers, were  made  admissible  after  the  death  of  the  declarants  in  the 
same  manner  and  to  the  same  extent  as  those  of  deceased  members 
of  the  family.  But  that  is  a  statutory  rule.  Whether  illegitimacy 
is  reputable  in  that  country,  and  the  statute  was  for  that  reason 
enacted,  or  whether  it  was  enacted  because  Great  Britain  makes  her 
experiment,  in  legislation  as  in  other  matters  upon  her  colonies  and 
dependencies,  it  is  not  of  importance  to  inquire.  Under  the  ap- 
plication of  the  rule  in  force  here,  what  was  left  of  complainant's 
case  under  the  first  proposition  of  law  is  entirely  barren  of  proof. 
The  Bill  will  he  dismissed  at  the  cost  of  the  complainant. 


INHABITANTS  OK  NORTH  BROOKFIELD  v.  INHABITANTS 

OF  WARREN. 

82  Mass.  ijo.     (i860) 

Action  of  contract  for  the  support  of  William  M.  Chickering,  a 
pauper. 

At  the  trial  in  the  Superior  Court  before  Lord,  J.  the  plaintiffs 
introduced  ^  evidence  tending  to  show  that  Harvey  Chickering,  the 
pauper's  father,  was  the  legitimate  son  of  Nathaniel  Chickering  and 
Ruth  Richardson  (who  as  was  agreed,  were  married  in  Connecticut 
on  the  22nd  day  of  February,  1804),  and  that  Nathaniel  gained  a 
settlement  in  the  defendant  town  under  the  St.  of  1793.  The  de- 
fendants, to  prove  that  Harvey  was  born  before  the  marriage  of 
his  parents,  and  was  therefore  illegitimate,  called  a  witness  who  tes- 
tified that,  in  the  fall  of  1803,  in  company  with  her  aunt,  Mrs.  Blair, 
she  made  a  visit  to  a  relation  who  lived  near  the  house  in  which 
Ruth  Chickering  was  then  living,  and  while  there  saw  Harvey  Chick- 
ering, then  an  infant  two  or  three  weeks  old ;  that  she  remembered 
the  date  from  the  fact  that  Mrs.  Blair's  only  daughter,  named  Sus- 
anna, was  with  them  and  was  about  a  year  old,  and  this  daughter 
was  born  in  September,  1802,  and  died  on  the  12th  of  Dec.  1803 ;  and 


248  Cases  on  Evidence 

that  she  had  been  kept  in  remembrance  of  the  date  of  Susanna's 
death  by  constant  intercourse  with  her  family  since  and  by  frequent 
reference  to  the  family  record.  The  Blair  family  was  not  related  to 
the  Richardson  or  the  Chickering  family. 

The  defendants  then  offered  as  evidence  that  Susanna  died  on 
the  1 2th  of  Dec.  1803,  a  large  ornamented  sheet  of  parchment,  bear- 
ing the  inscription  "family  record,"  on  which  were  entered  the  dates 
of  the  birth  and  marriage  of  Susanna  Blair's  parents,  the  dates  of  the 
birth  and  death  of  Susanna,  and  of  the  births,  marriages  and  deaths 
of  two  sons  born  subsequently  of  the  same  parents.  One  of  these 
sons,  forty-seven  years  old,  testified  that,  ever  since  his  earliest  recol- 
lection, his  father  had  kept  this  parchment  framed  and  hanging 
in  a  conspicuous  place  in  his  dwelling-house,  and  had  handed  it  down 
to  him ;  that  during  all  this  time  the  same  entries  had  been  on  it ;  and 
that  his  father  and  mother  were  dead.  And  there  was  evidence  that 
the  entries  of  the  births  and  deaths  upon  the  parchment  were  made, 
all  at  one  time,  by  direction  of  Susanna's  father,  more  than  forty 
years  before  the  trial ;  that  the  record  of  the  marriages  of  his  chil- 
dren had  been  added,  from  time  to  time  as  they  occurred ;  and  that 
he  and  his  son  kept  and  exhibited  the  parchment  as  a  true  statement 
of  the  events  recorded  on  it. 

The  defendants  also  offered  to  prove  that  an  ancient  grave-stone 
in  the  burial-ground  of  the  Blair  family  bore  the  name  of  Susanna, 
and  had  inscribed  on  it  December  12th,  1803  as  the  date  of  her  death. 

The  evidence  offered  by  the  defendants  was  excluded;  the  jury 
returned  a  verdict  for  the  plaintiffs,  and  the  defendants  alleged  ex- 
ceptions. 

BiGEiXJW,  C.  J.  At  the  trial  of  this  case,  the  date  of  the  birth  of 
the  father  of  the  pauper,  Harvey  Chickering,  became  a  material  fact, 
because  the  legal  settlement  in  controversy  depended  on  the  ques- 
tion whether  the  father  was  born  prior  to  the  marriage  of  his  parents, 
which  took  place  on  the  22nd  of  February,  1804.  To  prove  the  illegiti- 
macy of  Harvey  Chickering,  the  defendants  introduced  a  witness 
who  testified  that  she  saw  him,  then  an  infant,  during  the  lifetime 
of  Susanna  E.  Blair.  It  then  became  important  to  establish  the  date 
of  Susanna's  death,  because  if  she  died  before  the  date  of  the  mar- 
riage of  the  parent's  of  Harvey  Chickering,  it  would  follow  that  he 
must  have  been  born  out  of  wedlock. 

It  was  a  case  therefore  where  the  proof  of  a  fact  material  to  the 
issue  depended  on  the  existence  of  another  collateral  fact.  The  fac- 
tum prohandum   might  well  be  inferred   from  satisfactory  evidence. 


Declarations  Relating  to  Pedigree  249 

that  an  event  otherwise  immaterial,  took  place  at  a  particular  time. 
Such  testimony  is  not  only  competent,  but  without  it  it  would  often 
be  impossible  to  prove  essential  facts  in  a  court  of  justice.  Direct 
and  positive  proof  cannot  always  be  obtained,  and  in  matters  espe- 
cially which  relate  to  remote  periods  it  is  necessary  to  resort  to  cir- 
cumstantial evidence  and  presumption  to  supply  the  place  of  that 
testimony  which  is  lost  by  the  lapse  of  time  and  the  imperfection  of 
human  memory.  Such  evidence  in  the  strict  legal  sense  is  not  col- 
lateral. It  raises,  it  is  true,  a  new  and  distinct  inquiry;  but  if  it 
affords  a  reasonable  presumption  or  inference  as  to  the  principal  fact 
or  matter  in  issue,  it  is  relevant  and  material  and  does  not  tend  to 
distract  or  mislead  the  jury  from  the  real  point  in  controversy. 

The  objection  more  strenuously  urged  to  the  evidence  offered  at 
the  trial  is  to  the  nature  and  quality  of  the  proof  by  which  the  defend- 
ants sought  to  establish  the  date  of  Susanna  Blair's- death.  It  is  not 
denied  that  this  evidence  would  have  been  competent,  if  it  had  been 
introduced  to  prove  a  fact  directly  in  issue,  such,  for  instance  as  the 
date  of  the  pauper's  birth ;  but  it  is  contended  that  it  was  inadmissible 
to  establish  a  fact  collateral  in  its  nature,  from  which  the  main  fact 
in  issue  was  to  be  deduced  by  inference.  But  we  know  of  no  such 
distinction  in  the  rules  of  evidence.  The  competency  of  proof  can- 
not be  made  to  depend  on  the  inference  or  conclusion  which  is  sought 
to  be  drawn  from  it.  If  it  is  competent  to  prove  a  particular  fact 
in  controversy  when  it  is  directly  in  issue,  it  is  equally  competent 
when  the  same  fact  is  to  be  established  in  order  to  form  the  ground 
for  an  inference  or  presumption  from  which  the  material  subject 
of  inquiry  can  be  deduced.  The  true  test  is,  to  inquire  whether  the 
evidence  is  admissible  to  prove  the  fact  which  it  is  offered  to  establish, 
and  not  whether  such  fact  is  directly  or  only  collaterally  in  issue. 

In  the  present  case,  the  defendants  sought  to  prove  the  date  of 
the  death  of  Susanna  Blair  by  a  document  or  chart  containing  a  rec- 
ord of  the  births,  marriages,  and  deaths  kept  in  her  family  for  a  long 
series  of  years,  and  handed  down  by  her  deceased  parent  to  his  sons 
as  containing  a  true  statement  of  the  events  therein  recorded;  and 
also  by  proof  of  the  inscription  on  the  tombstone  erected  to  her  mem- 
ory in  the  family  burial-ground.  Such  evidence  is  deemed  to  be  com- 
petent and  satisfactory  proof  of  family  descent,  and  also  of  the  dates 
of  the  leading  events  in  family  history,  such  as  births,  marriages 
and  deaths,  especially  when  they  relate  to  ancient  occurrences.  They 
are  contemporaneous  with  the  events  which  they  record;  they  are 
made  by  parties  who  are  cognizant  of  the  facts,  and  who  would  have 


250  ,        Cases  on  Evidence 

no  interest  or  motive  in  misstating  them ;  and  they  are  in  their  nature 
public,  openly  exhibited,  and  well  known  to  the  family,  and  therefore 
may  be  presumed  to  possess  that  authenticity  which  is  derived  from  the 
tacit  and  common  assent  of  those  interested  in  the  facts  which  they 
record. 

Some  of  the  authorities  seem  to  limit  the  competency  of  this  species 
of  proof  to  cases  where  the  main  subject  of  inquiry  relates  to  pedi- 
gree, and  where  the  incidents  of  birth,  marriage  and  death,  and  the 
times  when  these  events  happened,  are  directly  put  in  issue.  Bui? 
upon  principle  we  can  see  no  reason  for  such  a  limitation.  If  this 
evidence  is  admissible  to  prove  such  facts  at  all,  it  is  equally  so  in 
all  cases  whenever  they  become  legitimate  subjects  of  judicial  inquiry 
and  investigation. 

We  are  therefore  of  opinion,  that  the  rejection  of  the  proof  offered 
at  the  trial  to  establish  the  date  of  the  death  of  a  person  who  de- 
ceased more  than  fifty  years  previously  was  erroneous,  i  Greenl.  Ev. 
sees.  103,  104.  Berkeley  Peerage  Case,  4  Campb.  401.  Monkton  v. 
Attorney  General,  2  Russ.  &  Myl.  162.     Jackson  v.  Cooley,  8  Johns. 

131- 

Uxceptions  sustained. 


CAMPION  V.  McCarthy. 
228  III.  87.    (1907) 

Farmer,  J.  This  suit  was  begun  by  appellee,  Henry  McCarthy, 
filing  a  bill  for  the  partition  of  certain  lands  of  John  Earl  deceased. 

The  controversy  is  as  to  whether  the  complainant,  Henry  Mc- 
Carthy, is  an  heir  of  John  Earl,  deceased,  and  entitled  to  an  interest 
in  the  lands  of  which  he  died  seized.  Complainant  claimed  to  be  an 
illegitimate  son  of  Susan  Champion,  who  was  the  mother  of  John 
Earl.  It  is  admitted  that  Earl  was  an  illegitimate  son  of  the  said 
Susan  Campion,  whose  maiden  name  was  Ayres.  She  originally  lived 
in  Elizabeth  township,  near  Brockville,  Ontario,  Canada.  There  she 
was  married  to  Elias  Champion  in  1830.  John  Earl  was  born  to 
Susan  Champion  (then  Susan  Ayres)  in  1822,  and  after  her  marriage 
to  Elias  Champion  he  became  a  member  of  his  mother's  family  and 
lived  with  her  up  to  the  time  of  her  death,  in  1893,  usually  being 
known  by  the  name  of  John  Champion.     In  1849  Elias  and  Susan 


De;clarations  Rh;i.ating  to  Pe;digr^E  251 

Champion,  and  several  children  born  to  them  after  their  marriage, 
and  John  Earl,  moved  to  DuPage  County,  Illinois,  where  they  re- 
sided about  one  year  and  then  moved  to  Ogle  county,  where  they 
lived  until  the  parents  died.  Susan  Champion  died  in  1893,  leaving 
a  will,  in  and  by  which  she  devised  to  John  Earl  the  real  estate  in 
controversy.  Complainant  claimed  to  be  an  illegitimate  son  of  said 
Susan  Champion,  born  to  her  in  Canada  in  1826,  before  her  mar- 
riage to  Elias  Champion.  This  would  make  him  a  half  brother  to 
John  Earl,  and,  as  such,  an  heir  entitled  to  a  one-fourth  interest  in 
the  real  estate  of  which  John  Earl  died  seized. 

It  is  not  denied  that  hearsay  evidence,  such  as  declarations  of  de- 
ceased parents  and  members  of  the  family,  may  be  proven  to  estab- 
lish pedigree,  but  it  is  contended  that  the  rule  permitting  such  proof 
is  limited  to  cases  of  legitimate  relationship  and  cannot  be  heard  to 
establish  illegitimacy.  While  this  position  is  apparently,  sustained 
in  Flora  v.  Anderson,  75  Fed.  Rep.  217,  cited  and  relied  on  by  ap- 
pellants, that  case  is  not  in  harmony  with  the  great  weight  of  author- 
ity as  well  as  the  better  reason.  That  case  followed  the  English  case 
of  Crispin  v.  Doglioni,  3  Swab.  &  Tr.  44,  which  appears  to  have 
been  based  upon  the  common  law  rule  that  an  illegitimate  is  filius 
nullius.  This  common  law  rule  has  been  abrogated  in  this  and  other 
States  by  statute  (Miller  v.  Pennington,  218  111.  220;  Bales  v.  Elder, 
118  id.  436)  ;  and  where  such  statutes  have  been  enacted.  Crispin  v. 
Doglioni  cannot  be  regarded  as  authority  to  be  followed.  The  declara- 
tions sought  to  be  proved  in  that  case  were  those  of  a  deceased 
brother  of  the  intestate  putative  father,  and  the  court  held  that  the 
putative  father  had  no  relationship  with  a  bastard  son,  and  his  dec- 
larations, or  those  of  members  of  his  family,  were  therefore  incom- 
petent. 

As  to  whether  declarations  of  the  supposed  father  and  members  of 
his  family  are  competent  there  is  some  conflict  in  the  authorities. 
In  Elliot  on  Evidence  (vol.  i,  sec.  376),  it  is  said:  "There  is  a  con- 
flict as  to  whether  the  declarations  as  to  a  son's  illegitimacy,  by  a 
member  of  the  father's  family  should  be  rejected.  The  better  rule,  is, 
not  to  exclude  such  testimony  in  a  proper  case.  There  seems  to  be 
no  dissent  whatever,  however,  as  to  the  admission  of  the  declarations 
in  a  proper  case,  as  to  illegitimacy,  made  by  a  member  of  the  mother's 
family.  There  is,  perhaps,  a  technical  reason  for  excluding  the  dec- 
larations as  to  illegitimacy  where  they  show  that  the  person  is  a 
bastard,  and  not,  therefore,  a  member  of  the  father's  family;  but 
this  would  hardly  apply  in  the  case  of  the  mother,  and  in  most  of  the 


252  Cases  on  Evidence 

States  there  are  statutes  which  change  the  common  law   status  of 
bastards." 

The  rule  that  declarations  of  the  supposed  parent  and  deceased 
members  of  his  or  her  family  may  be  proven  to  establish  the  parentage 
where  the  relationship  is  illegitimate,  is  supported  in  Crawford  v. 
Blackburn,  17  Md.  49  {j"]  Am.  Dec,  323),  Blackburn  v.  Crawford,  3 
Wall.  175,  Watson  v.  Richardson,  no  Iowa,  678,  and  Alston  v. 
Alston,  114  id.  29.  In  all  of  these  cases  it  is  held  that  the  declara- 
tions of  the  putative  father  may  be  proven.  Unquestionably,  by  the 
great  weight  of  authority  the  declarations  of  the  mother  and  the  mem- 
bers of  her  family  are  competent  to  prove  the  relation  of  parent  and 
child  without  regard  to  whether  the  claim  is  that  the  child  was  legi- 
timate or  illegitimate.  It  is,  of  course,  to  be  understood  that  this 
rule  is  applicable  only  in  cases  where  the  child  was  born  before  mar- 
riage of  the  mother,  or  in  cases  where  she  had  never  been  married. 

Decree  affirmed. 


WISE  V.  WYNN. 
59  Miss.  588.     (1882) 


Chalmers,  J.  More  than  forty  years  ago  there  came  to  Holmes 
county  in  this  state  a  man  calling  himself  Charles  Wise.  His  par- 
entage and  past  antecedents  were  wholly  unknown,  and  except  to  a 
few  persons  he  seems  to  have  preserved  great  reticence  on  these 
subjects.  He  lived  in  Holmes  county  continuously  thereafter,  until 
his  death  in  1870,  and  in  the  meantime  accumulated  a  considerable 
landed  estate.  Dying  intestate,  unmarried,  and  without  known  heirs, 
his  property  after  his  death  was  by  regular  proceedings  escheated  to 
the  State,  and  from  the  State  subsequently  purchased  by  the  appellee, 
Wynn.  Within  the  time  limited  by  our  statutes  (Code  1880,  sec. 
892,  this  action  has  been  brought  for  the  recovery  of  the  property 
by  those  who  claim  to  be  the  heirs-at-law  of  the  decedent. 

They  prove  that  they  are  the  children  of  Thomas  Wise,  deceased, 
formerly  a  resident  of  a  place  known  as  "Hell's  Corner,"  In  Amelia 
County,  Virginia,  where  the  corners  of  three  coimties  come  together; 
that  nearly  fifty  years  ago  their  father  had  a  younger  brother  named 
Charles,  who  having  seduced  a  young  lady  of  respectable  family,  fled 
the  country  to  escape  the  vengeance  of  her  relatives,  and  announced 


DKCLARATIONS   REI.ATING   TO    PEDIGREI)  253 

at  the  time,  to  an  intimate  friend,  that  he  expected  to  go  to  Texas 
or  Mississippi,  and  that  he  should  take  care  that  no  one  in  Virginia 
should  ever  discover  the  place  of  his  future  home.  The  friend  to 
whom  this  statement  was  made  is  still  alive,  and  these  facts  are  es- 
tablished by  his  testimony.  From  that  time  forth,  until  within  a 
short  time  before  the  bringing  of  this  suit,  nothing  was  ever  heard 
in  Virginia  of  the  subsequent  career  of  Charles  Wise.  Having  made 
this  proof,  the  plaintiffs  proposed  to  prove  by  two  witnesses,  living 
in  Holmes  county,  that  the  man  known  as  Charles  Wise,  and  whose 
estate  is  involved  in  this  litigation,  told  them  that  he  came  from  a 
place  in  Virginia  known  as  "Hell's  Corner,"  where  the  corners  of 
three  counties  came  together,  that  he  had  there  a  brother  named 
Thomas,  and  that  he  had  left  there  because  of  some  trouble  about  a 
woman.  The  whole  of  this  proffered  testimony  was  excluded  by  the 
court  below,  except  the  isolated  statement  of  the  deceased  that  he 
had  a  brother  named  Thomas,  the  witnesses  not  even  being  allowed 
to  state  that  the  deceased  had  said  that  his  brother  Thomas  lived  in 
Virginia,  or  that  he  himself  came  from  that  State. 

This  ruling  of  the  learned  judge  was  based  upon  the  dicta  of  many 
authorities  to  the  effect,  that  while  in  questions  of  pedigree  the  hear- 
say declarations  of  a  deceased  member  of  a  family  are  receivable 
in  evidence,  as  to  matters  of  birth,  death,  age,  marriage,  and  the  like, 
declarations  as  to  place  are  not.  The  later  and  better  considered 
cases,  however,  repudiate  this  distinction  between  declarations  as  to 
place  and  those  touching  other  family  matters,  where  the  inquiry  is 
strictly  one  of  pedigree,  and  the  declarations  as  to  place  are  not  relied 
on  as  giving  any  right  by  reason  of  the  place,  but  proof  as  to  place 
is  made  merely  by  way  of  identification  of  the  person  or  family. 
Thus,  in  a  question  of  settlement  under  the  poor  laws,  where  the 
right  of  settlement  is  dependent  upon  the  place  of  present  or  former 
residence,  hearsay  declarations  as  to  place  are  inadmissible ;  but  where 
the  question  is  purely  one  of  pedigree,  and  the  effort  is  to  identify 
the  particular  person  or  family  about  whom  the  declarant  was  speak- 
ing, declarations  as  to  place  stand  upon  the  same  footing  as  any  others 
relative  to  matters  of  family  history.  Wharton  Ev.  sec.  208,  and 
cases  cited.  Manifestly  this  is  the  true  rule  here.  There  can  be  no 
reason  founded  in  good  sense  for  admitting  the  declarations  of  a 
deceased  person  that  he  has  a  brother  named  Thomas,  and  excluding 
his  statement  of  where'  that  brother  lives.  The  name  wholly  fails  to 
identify  without  identification  of  the  place,  and  the  one  is  worthless 
without  the  other.     H  the  court  below  was  correct  in  admitting  any 


254  Cases  on  Evidence 

of  the  declarations  of  Charles  Wise  touching  his  family,  it  should 
have  admitted  them  all,  since  they  all  tended  to  establish  his  own 
identity,  and  were  proffered  not  for  the  purpose  of  basing  any  par- 
ticular right  on  the  place  of  his  alleged  nativity,  but  solely  for  the 
purpose  of  showing  who  he  was,  and  to  what  family  he  belonged. 

But  was  it  admissible  to  show  this  by  his  own  statements,  without 
some  proof  outside  of  his  own  declarations  connecting  him  with  the 
family  of  which  he  claimed  to  be  a  member?  The  general  rule  un- 
doubtedly is,  that  before  hearsay  declarations  in  matters  of  pedigree 
can  be  introduced  in  evidence,  some  proof  dehors  the  declarations 
must  be  made  that  the  declarant  was  in  fact  a  member  of  the  family 
about  whicli  he  was  speaking.  It  was  unanimously  so  ruled  by  all  the 
judges  in  The  Banbury  Perrage  Case,  2  Selwyn  N.  P.  764,  where 
the  petitioner  sought  to  introduce  in  evidence  the  statements  and 
depositions  contained  in  a  chancery  litigation  conducted  more  than 
one  hundred  and  fifty  years  before,  in  which  an  ancestor  of  the  peti- 
tioner styled  himself,  and  was  styled  by  those  who  professed  to  be- 
long to  the  family,  the  legitimate  son  of  A.  B.  It  was  held  that  such 
statements  were  not  admissible,  though  upon  a  question  of  pedigree, 
until  it  could  be  shown  by  proof  aliunde  that  those  making  these  state- 
ments actually  were  members  of  the  family  as  to  which  the  claim  was 
preferred.  The  same  doctrine  is  announced  in  Monkton  v.  Attorney 
General,  2  Russ.  &  Myl.  147,  though  it  may  perhaps  be  doubted 
whether  the  conclusion  reached  in  that  case  does  not  offend  against 
the  doctrine.  But  in  these  and  many  other  cases  of  a  similar  char- 
acter, which  might  be  cited,  the  attempt  was  to  set  up  some  rig^ht 
derived  through  the  declarant,  and  to  establish  that  right  by  his  own 
statements  as  to  the  pedigree  of  the  family  of  which  he  claimed  to 
be  a  member.  It  seems  manifest  that  this  cannot  be  done  without 
precedent  proof  from  other  sources  that  he  is  what  he  claims  to  be, 
to  wit,  a  member  of  the  family.  Thus,  if  Charles  Wise  had  married 
here  and  left  children,  it  is  clear  that  those  children  could  not  have 
claimed  any  interest  in  the  estate  of  Thomas  Wise,  in  Virginia,  by 
virtue  alone  of  their  father's  statement  that  Thomas  was  his  brother. 
But  how  is  it  when  the  case  is  reversed,  and  a  plaintiff  is  seeking  to 
reach  the  estate  of  the  declarant  by  evidence  of  what  he  said  with 
reference  to  his  family  and  kindred?  It  is  quite  clear  that  I  cannot 
establish  my  right  to  share  in  the  estate  of  A.  by  proof  alone  of  the 
fact  that  my  father  declared  in  his  lifetime  that  A.  was  his  brother, 
but  may  I  not  do  so  by  showing  that  A.  himself  so  declared?  Upon 
this  question  we  find  a  singular  dearth  of  authorities.     In  Adie  v. 


Declarations  Relating  to  Pedigree  255 

Commonwealth,  25  Gratt.  712,  a  case  strikingly  like  this  in  all  its 
features,  testimony  of  this  character  seems  to  have  been  admitted 
without  objection,  and  so  also  in  Cuddy  v.  Brown,  78  111.  415.  In 
Moffit  V.  Witherspoon,  10  Ired.  185  persons  who  claimed  to  be  the 
nephews  and  nieces  of  Mrs.  Donahoe,  in  an  ejectment  suit  brought 
after  her  death  to  recover  certain  real  estate  belonging  to  her  during 
her  life,  were  permitted  to  prove  that  she  had  declared,  many  years 
before  her  death,  that  the  mother  of  the  plaintiff's  was  her  only  sister, 
and  no  other  proof  of  heirship  than  this  seems  to  have  been  offered. 
In  Shields  v.  Boucher,  i  De  G.  &  Sm.  40  (a  case  to  which  we  have 
not  had  access,  but  which  is  referred  to  at  length  in  Whart.  Ev.  sec. 
208,  note  4),  Sir  Knight  Bruce  expressed  the  strong  conviction  that 
in  a  controversy  purely  genealogical  declarations  made  by  a  deceased 
person,  as  to  where  he  or  his  family  came  from,  of  what  place  his 
father  was  designated,  and  what  occupation  he  followed  would  be 
admissible,  and  might  be  most  material  evidence  for  the  purpose  of 
identifying  and  individualizing  the  person  and  family  under  discus- 
sion. 

Independently  of  these  or  of  any  authorities,  we  think  ex  necessi- 
tate rei  as  a  matter  of  common  sense,  that  declarations  such  as  were 
offered  here  and  under  the  circumstances  here  existing,  should  always 
be  received  in  evidence.  They  stand  to  some  extent  upon  the  footing 
of  declarations  against  interest,  or  of  what  Mr.  Wharton  calls  "self- 
disserving  declarations."  If  they  be  not  admitted,  there  must  be  in 
many  cases  a  failure  of  justice.  No  man  who  knew  Charles  Wise  in 
Virginia  ever  saw  him  here,  and  no  man  who  knew  him  here  ever 
saw  him  in  Virginia;  and  if  we  reject  his  own  statements  as  to  who 
he.  was,  and  whence  he  came,  these  inquiries  must  remain  forever 
unanswered.  If  such  be  the  rule  of  law,  it  must  be  impossible  legally 
to  estabHsh  the  identity  of  very  many  travellers  who  die  among  stran- 
gers in  distant  lands,  although  in  point  of  fact  there  may  not  be  in  anv 
man's  mind  the  slightest  doubt  as  to  who  they  were. 

Reversed  and  remanded. 


256  Cases  on  Evidence 

MASONS  V.  FULLER. 
43  Vt.  '29.    (1872) 

This  was  a  complaint  for  bastardy,  made  by  the  said  Vergina  by 
the  name  of  Vergina  Vine,  dated  in  January,  1871,  wherein  she  rep- 
resented herself  as  a  single  woman.  The  case  was  entered  in  the 
May  term,  1871  and  continued  to  the  December  term  following,  at 
which  term  it  was  tried  by  jury  upon  the  general  issue.  Redfield,  J., 
presiding. 

Before  the  trial,  John  Mason,  by  leave  of  court,  entered  as  a  party 
plaintiff,  as  the  husband  of  said  Vergina.  The  said  Vergina  testified 
on  cross-examination  as  follows : 

"I  was  married  to  my  first  husband,  Edward  Vine,  some  fourteen 
years  ago,  and  lived  with  him  nine  years  in  Bakersfield.  He  then 
went  off,  and  I  have  not  seen  him  since.  He  said  he  was  going  to 
St.  Albans,  when  he  left.  My  husband  died  two  years  ago  last  March. 
I  was  not  with  him  at  the  time  of  his  death,  or  present  at  his  burial, 
and  have  no  personal  knowledge  of  his  death;  I  only  know  it  from 
his  folks  telling  me  and  writing  me.  They  wrote  me  three  letters 
this  winter,  and  his  brother  told  my  husband." 

The  defendant  requested  the  court  to  charge  that  the  said  Vergina 
having  testified  to  a  former  marriage,  it  was  necessary,  in  order  to 
entitle  her  to  a  verdict,  that  she  would  show  by  legal  proof,  the  death 
of  her  said  husband,  Edward  Vine ;  that  her  testimony  did  not  amount 
to  legal  proof,  upon  which  the  jury  could  find  the  fact  of  death. 

But  the  court   upon   this  point  charged  as    follows : 

"The  question  is  made,  whether  the  said  Vergina,  at  the  time  of 
conception  and  birth  of  the  child,  was  a  single  woman.  The  only 
testimony  upon  this  point,  is  from  her,  and  you  have  to  say  whether 
this  fact  is,  in  your  minds,  established.  When  a  woman  comes  into 
court  for  trial,  the  law  will  not  presume  any  marriage — she  will  be 
presumed  to  be  single,  in  the  absence  of  any  evidence  tending  to 
prove  a  marriage." 

To  the  refusal  to  charge  as  requested,  and  to  charge  as  given  the 
defendant  excepted. 

Wheeler,  J.  So  far  as  the  defendant  asked  the  court  to  charge 
that  the  plaintiff  must  show  the  death  of  her  former  husband,  to 
entitle  her  to  a  verdict  in  her  favor,  the  request  appears  to  have  been 
complied  with.  That  part  of  the  charge  stated,  in  which  the  court 
told  the  jury  that  the  law  would  not  presume  any  marriage,  but  would 


Declarations  Relating- to  Pedigree  257 

presume  a  woman  to  be  single,  appears  to  have  been  stated  with 
reference  to  a  case  where  there  was  no  evidence  upon  the  subject 
of  marriage  one  way  or  the  other.  Such  a  case  would  have  been 
very  different  from  this  one;  and  the  remark  appears  to  have  been 
made  as  an  illustration  merely,  and  not  as  a  guide  to  the  jury.  Whether 
sound  or  erroneous,  the  remark  would  not  injure  the  defendant.  The 
only  question  left,  as  to  this  part  of  the  case,  is  whether  the  testimony 
of  the  plaintiff  as  to  what  her  former  husband's  folks  had  told  and 
written  her  about  his  death,  was  competent  evidence  of  it.  "Hear- 
say is  good  evidence  to  prove  who  is  my  grandfather,  when  he  mar- 
ried, what  children  he  had,  &c. ;  of  which  it  is  not  reasonable  to 
presume  I  have  better  evidence.  So  to  prove  my  father,  mother, 
cousin,  or  other  relation  beyond  the  sea,  dead;  and  the  common  repu- 
tation and  belief  of  it  in  the  family  gives  credit  to  such  evidence." 
Buller's  N.  P.  294.  Similar  doctrine  has  been  many  times  approved 
of  and  applied  in  England,  and  in  the  federal  and  state  courts  in  this 
country,  i  Phillips'  Ev.  269,  Cowen  &  Hill's  note,  97 ;  Webb  v.  Rich- 
ardson, 42  Vt.  465.  This  would  seem  to  sustain  the  ruling  of  the 
County  Court  in  this  respect. 

Judgment  affirmed. 


SCHEIDEGGER  et  al.  v.  TERRELL. 
149  Ala.  S38.     (1906) 

Ejectment  by  Rudolph  Scheidegger  and  others  against  Joshua  D. 
Terrell.     From  a  judgment  of  nonsuit,  plaintiffs   appeal.     Affirmed. 

This  is  an  action  of  ejectment  (under  the  statute)  for  the  recovery 
of  certain  real  estate,  the  plaintiffs  claiming  as  the  heirs  of  one  Made- 
line Kronenberg,  wife  of  Edward  Kronenberg.  The  point  of  con- 
tention is  whether  or  not  said  Madeline  Kronenberg,  wife  of  Edward 
Kronenberg  is  identified  as  the  same  person  as  Madeline  Ritter,  who 
left  Switzerland  years  ago  and  came  to  the  United  States.  The  court 
below  excluded  certain  parts  of  certain  depositions,  a  nonsuit  was 
taken,  and  this  appeal  thereon. 

The  contention  of  the  appellant  is  that  those  parts  of  the  depositions 
which  were  suppressed  should  have  been  admitted,  under  the  rules 
of  law,  which  permit  hearsay  testimony  to  a  certain  extent  in  mat- 
ters  of  pedigree.     The  principles  of  law  are   few  and  well  under- 


258  Cases  on  Evidkxce 

stood  on  this  question,  to-wit :  That,  in  matters  of  pedigree,  the 
general  repute  in  the  family  may  be  testified  to  by  a  member  of  the 
family;  also  that  declarations  by  the  deceased  himself,  and  declara- 
tions by  persons  who  are  shown  by  other  evidence  to  be  members 
of  the  family,  may  be  proven,  provided  such  members  are  dead. 
Such  declarations  by  members  of  the  family  must  be  general  repute 
in  the  family,  or  on  what  said  members  have  heard  other  members 
of  the  family  say.  A  declaration  which  merely  expresses  information 
collected  from  persons  not  qualified  to  be  declarants,  or  from  other 
sources  than  family  tradition,  or  the  statements  of  other  members 
of  the  family  who  knew  the  facts,  is  not  admissible.  It  is  also  true 
that,  where  a  declaration  of  a  member  of  the  family  is  sought  to  be 
proved,  the  declaration  itself  should  be  proved,  and  not  the  declara- 
tion of  the  witness  from  it.  i  Elliott  on  Ev.  sees.  336,  371 ;  Stein  v. 
Bowman,  13  Pet.  (U.  S.)  209,  10  L.  Ed.  129;  Chapman  v.  Chapman. 
2  Conn.  347,  7  Am.  Dec.  277;  Jackson  v.  Browner,  18  Johns.  (N.  Y.) 
37;  Wise  V.  Wynn,  59  Miss.  588;  42  Am.  Rep.  381 ;  Young  v.  State 
(Ore.)  59  Pac.  812,  47  L.  R.  A.  548;  16  Cyc.  1130,  1228,  1229;  22  Ency. 
Law,  pp.  641,  642,  650;  In  re  Plurlburt's  Estate,  68  Vt,  366,  35  At. 
77,  35  L.  R.  A.  794,  800;  Rogers  v.  De  Bardeleben  Coal  &  Iron  Co., 
97  Ala.  154,  156,  12  So.  81. 

The  testimony  of  Frederick  Scheidegger  shows  that  he  had  no 
personal  knowledge  at  all  of  Magdalen  Ritter,  or  of  Madeline  Kron- 
enberg.  While  he  states  that  his  mother  used  to  "speak  of  her  to  us 
children,"  yet  when  he  came  to  relate  what  his  mother  actually  said, 
it  was  simply  that  "her  sister  was  in  the  United  States  and  that  she 
"used  to  receive  letters  from  her."  There  is  no  fact  in  his  tes- 
timony, no  repute  in  the  family  and  no  declaration  of  any  member  of 
the  family,  which  tends  to  show  that  Magdalena  Ritter  and  Madeline 
Kronenberg  were  one  and  the  same  person.  He  states  distinctly  that 
his  knowledge  of  the  fact  that  Madeline  Kronenberg's  maiden  name 
was  Ritter  and  that  sh.e  married  Kronenberg,  was  from  the  documents 
from  Mobile  in  the  English  language,  which  has  been  translated  to 
him.  Hence  these  parts  of  his  testimony  noted  as  "stricken"  being 
evidently  derived  from  these  sources,  were  properly  suppressed. 

The  point  of  the  third  ground  of  objection  to  the  testimony  is  not 
that  the  person  making  the  declarations,  to-wit,  the  mother  of  the 
witness,  is  not  shown  to  be  a  member  of  the  family  of  Madeline 
Kronenberg,  for,  of  course,  that  is  the  thing  to  be  proved  by  the  state- 
ments, and  it  would  be  only  necessary  to  show  that  the  declarant  was 
a  member  of  the  family  to  which  it  is  sought  to  attach  Madeline  Kron- 


DecIvArations  Re;lating  to  PiCDiGREE  259 

enberg  by  her  statements;  but  the  point  is  that  the  "hearsay  state- 
ments" do  not  consist  of  "declarations"  of  such  a  person  having  a 
knowledge  of  the  facts.  If  the  witness  had  testified  that  he  had  often 
heard  his  mother  say  that  she  had  a  sister  living  in  Mobile,  Ala.,  whose 
name  was  Madeline  Kronenberg,  and  that  her  husband  was  named 
Edward  Kronenberg,  and  that  they  called  her  Madeline,  in  English 
in  place  of  Magdalena,  as  she  was  originally  called,  then  that  would 
have  been  properly  admitted  as  a  statement  of  a  member  of  the  fam- 
ily; but,  as  before  shown,  the  witness  does  not  testify  to  any  such 
statements,  but  only  to  his  own  inferences  that  Madeline  Kronenberg 
was  "born  Ritter,"  etc.,  because  his  mother  said  that  she  had  a  sister 
in  the  United  States  and  he  had  seen  certain  translations  of  English 
documents  from  Mobile. 

The  judgment  of  the  court  is  affirmed, 

Tyson^  C.  J.,  and  Haralson  and  Di:nson,  J  J.,  concur. 


GREENE  V.  ALMAND. 
Ill  Ga.  735.     (1900) 


Cobb,  J.  "Pedigree,  including  descent,  relationship,  birth,  mar- 
riage, and  death,  may  be  proved  by  the  declarations  of  deceased  per- 
sons related  by  blood  or  marriage."  Civil  Code,  sec.  5177;  Foster 
v.  Brooks,  6  Ga.  293.  "Before  such  declarations,  however,  can  be 
admitted,  the  relationship  of  the  declarant  to  the  family  must  be 
proved  by  other  evidence  than  his  declarations ;  for  it  would  be  a 
petitio  principii  to  say  that  his  declarations  are  receivable  because  he  is 
a  member  of  the  family,  and  he  is  a  member  of  the  family  because 
his  declarations  are  receivable."  i  Wharton  Ev.  sec.  218.  "The  rela- 
tionship of  the  declarant  with  the  family  must  be  established  by  some 
proof  other  than  the  declaration  itself."  2  Taylor,  Ev.  sec.  640.  See 
also  American  Notes  to  same  volume,  page  427;  i  Or.  Ev.  ,(i6th  ed.) 
198;  18  Am.  &  Eng.  Enc.  L.  (ist  ed.)  260;  Abbott's  Trial  Ev.  (2nd 
ed.)  117,  sec.  36;  Blackburn  v.  Crawfords,  70  U.  S.  175.  The  only 
assignment  of  error  in  the  bill  of  exceptions  which  was  argued  here 
complained  of  the  rejection  of  evidence  which  was,  under  the  prin- 
ciples above  referred  to,  clearly  inadmissible ;  and  therefore  the  judg- 
ment is 

Affirmed.    All  the  Justices  concurring. 


26o  Cases  on  Evidence 

ROLLINS  V.  WICKER. 
J34  N.  C.  55p.    (1911) 

Walker,  J.  This  is  an  action  for  the  recovery  of  land.  Plaintiff 
claimed  that  she  inherited  the  land  from  her  father,  Thomas  Rollins, 
and  the  sole  question  in  the  case  is  as  to  her  legitimacy.  Her  father 
and  mother  were  married  at  the  time  of  his  death.  The  evidence  as 
to  the  time  of  the  plaintiff's  birth  was  conflicting.  The  jury  found 
that  Thomas  Rollins  owned  the  land  at  the  time  of  his  death ;  that 
plaintiff  is  not  his  heir  at  law,  and,  therefore,  is  not  the  owner  of  the 
land.  There  was  a  finding  as  to  defendant's  title,  but  that  is  not 
material,  as  plaintiff  must  recover  on  the  strength  of  her  own  title, 
and  cannot  rely  on  the  weakness  of  defendant's. 

In  order  to  show  that  plaintiff  was  the  legitimate  child  of  Thomas 
and  Rachel  Rollins,  the  plaintiff  proposed  to  prove  by  a  witness 
named  Kelly  that  he  wis  a  juror  in  the  trial  of  a  case  formerly 
pending  in  Moore  county,  wherein  the  plaintiff'  in  this  case,  but  not 
the  defendant,  was  a  party,  and  which  involved  the  legitimacy  of  the 
plaintiff,  and  that  the  jury  found  as  a  fact  that  the  plaintiff  was 
the  legitimate  child  of  Thomas  and  Rachel  Rollins.  An  objection  to 
this  evidence  was  sustained,  and  the  plaintiff  excepted.  The  ruling 
was  correct.  That  was  not  the  way  to  prove  the  fact,  even  if  the 
evidence  were  otherwise  competent.  The  record  itself  is  the  primary 
and  only  competent  proof  of  its  contents,  unless  it  has  been  lost  or 
destroyed,  and  there  is  no  suggestion  that  it  had  been.  Secondary 
evidence  is  admissible  when  the  original  cannot  be  produced.  Varncr 
V.  Johnson,  112  N.  C.  570;  In  re  Thorp,  150  N.  C.  487.  "It  may  be 
stated  generally  that  the  record,  or,  in  proper  cases,  certified  or  duly 
exemplified  and  authenticated  copies  thereof,  should  be  produced  to 
show  transactions  in  judicial  proceedings,  and,  when  a  matter  is 
of  record,  parol  evidence  is  not,  ordinarily,  admissible  to  show  the 
contents  of  the  record."    i  Elliott  on  Evidence,  sec.  212. 

The  plaintiff  offered  to  prove  by  the  same  witness  what  was  the 
testimony  of  Joseph  Buchanan  (a  deceased  kinsman  of  the  plaintiff) 
in  the  trial  of  the  other  case  as  to  plaintiff's  legitimacy,  and  that  it 
tended  to  estabHsh  the  fact.  This  evidence  was  properly  excluded. 
It  does  not  appear  that  the  declaration  of  the  deceased  relative  was 
made  ante  litem  motam.  This  expression  is  not  restricted  to  the  date 
of  the  commencement  of  the  present  suit,  but  to  the  beginning  of  the 
controversy.     In  order  to  avoid  the  mischief  which  would  otherwise 


DbcIvARAtions  relating  to  Pedigree  261 

result,  "all  ex  parte  declarations,  even  though  made  upon  oath,  re- 
ferring to  a  date  subsequent  to  the  beginning  of  the  controversy,  are 
rejected.  This  rule  of  evidence  was  familiar  in  the  Roman  law ;  but 
the  term  lis  iiiota  was  there  applied  strictly  to  the  commencement  of 
the  action,  and  was  not  referred  to  an  earlier  period  of  the  con- 
troversy. But  in  our  law  the  term  lis  is  taken  in  the  classical  and 
larger  sense  of  controversy,  and  by  lis  mota  is  understood  the  com- 
mencement of  the  controversy.  The  commencement  of  the  contro- 
versy has  been  further  defined  by  Mr.  Baron  Anderson,  in  a  case  of 
pedigree,  to  be  'the  arising  of  that  state  of  facts  on  which  the  claim  is 
founded,  without  anything  more.' "  i  Greenleaf  on  Evidence,  sec. 
131.  The  value  of  this  kind  of  evidence  depends  upon  its  being  drawn 
from  an  unbiased  source,  and  it  should  emanate  from  those  in  a  situ- 
ation favorable  to  a  knowledge  of  the  truth,  and,  what  is  a  very 
important  consideration,  it  should  refer  to  a  period  "when  this  foun- 
tain of  evidence  was  not  rendered  turbid  by  agitation."  Section  132. 
In  the  same  section  a  very  apt  illustration,  applicable  to  this  case,  will 
be  found,  for  it  is  there  said:  "In  this  case  (Freeman  v.  Phillips,  4 
M.  &  S.,  at  page  497),  it  was  observed  by  one  of  the  learned  judges 
that  'the  distinction  had  been  correctly  taken  that,  where  the  lis 
mota  was  on  the  very  point,  the  declarations  of  persons  would  not  be 
evidence ;  because  you  cannot  be  sure  that  in  admitting  the  depositions 
of  witnesses,  selected  and  brought  forward  on  a  particular  side  of  the 
question,  who,  embark,  to  a  certain  degree,  with  the  feelings  and 
prejudices  belonging  to  that  particular  side,  you  are  drawing  evidence 
from  perfectly  unpolluted  sources' ".  2  Wigmore  on  Ev.  sees.  1482- 
3;  Westfeldt  v.  Adams,  131  N.  C.  379.  In  our  case  it  appears  that  a 
controversy  existed,  as  to  the  plaintiff's  legitimacy,  at  the  time  of  the 
alleged  declaration,  when  it  is  supposed  that  the  mind  of  the  declarant 
was  not  evenly  or  nicely  poised,  but  may  have  been  leaning  toward 
one  side,  with  the  temptation  to  exceed  or  fall  short  of  the  truth. 
The  proposed  testimony  should  be  free  from  suspicion.  2  Wigmore, 
sec.  1482  and  notes. 

The  assigments  of  error  cannot  be  sustained. 

No  error. 


262  Cases  on  Evidence 

PEOPLE  V.  RATZ. 

115  Col.  1^2.     (i8p6) 

Henshaw,  J.  The  defendant  was  convicted  of  the  crime  of  rape, 
in  having  had  carnal  intercourse  with  a  female  child  under  the  age 
of  fourteen  years,  and  not  his  wife.  The  intercourse  was  admitted. 
The  age  of  the  child  was  a  question  in  dispute.  It  >vas  conceded 
that  the  intercourse  was  not  had  through  force  or  violence,  so  that  if, 
at  the  time  thereof,  the  child  was  over  the  age  of  fourteen  years,  the 
crime  of  rape  was  not  committed. 

The  child  herself  testified  to  her  age,  as  well  as  to  the  date  of  the 
intercourse.  Her  evidence  went  to  show  that,  at  the  time  when  Ratz 
carnally  knew  her,  she  was  under  the  age  of  fourteen.  The  evidence 
of  the  child  was  admissible.  A  person's  age  may  be  proved  by  his 
own  testimony,  and  the  fact  that  knowledge  of  that  age  is  derived 
from  the  statements  of  the  parents,  or  from  family  reputation,  does 
not  render  it  inadmissible.  (Hill  v.  Eldridge,  126  Mass.  234;  Cherry 
v.  State,  68  Ala.  29 ;  Bain  v.  State,  61  Ala.  75 ;  Roscoe's  Criminal  Evi- 
dence, 272.)  The  testimony  of  the  mother  of  the  child  also  went  to 
prove  the  fact  that,  at  the  date  in  question,  she  was  under  the  age  of 
fourteen. 

The  mother,  when  on  the  witness  stand,  was  shown  a  book,  and 
testified  that  it  was  hers,  and  that  it  was  her  family  Bible;  that  it 
contained  the  record  of  her  family.  This  book  contained,  amongst 
other  entries,  the  name  of  the  child  and  the  date  of  her  birth.  The 
mother  testified  that  it  was  correct.  Objection  was  made  to  the  in- 
troduction of  the  record,  by  the  defendant,  upon  the  ground  that  it 
appeared  that  the  record  was  in  English;  that  the  mother  did  not 
know  how  to  read  or  write  English,  and  could  not  tell  whether  or  not 
the  record  was  correct. 

The  admissibility  of  the  book  did  not  depend  upon  proof  of  hand- 
writing or  authorship  of  the  entries.  It  depended  upon  proof  of  the 
fact  that  it  was  the  family  Bible,  which  evidence  was  offered  by  the 
testimony  of  the  mother.  As  is  well  said  in  Hubbard  v.  Lees,  L. 
R.  I  Ex.  255 :  "To  require  evidence  of  the  handwriting  or  authorship 
of  the  entries  (in  a  family  Bible)  is  to  mistake  the  distinctive  char- 
acter of  the  evidence,  for  it  derives  its  weight,  not  from  the  fact  that 
the  entries  are  made  by  any  particular  person,  but  that,  being  in  that 


Declarations  Relating  to  Pedigree  263 

place,  they  are  to  be  taken  as  assented  to  by  those  in  whose  custody 
the  book  has  been." 

Judgment  and  order  appealed  from  are  affirmed. 
McFarland,  J,,  and  Temple,  J.,  concurred. 


RINGHOUSE  V.  KEEVER. 
4P  III.  4/0.    (i86g) 

Lawrence,  J.  This  was  an  action  in  ejectment  brought  by  Maria 
Keever,_  claiming  as  widow  and  heir  of  her  former  husband,  Henry 
Hardie.  It  is  objected  that  the  proof  of  the  death  was  not  sufficient. 
The  ordinary  rule  is  that  it  is  general  reputation  among  the  kindred 
only  of  a  deceased  person  that  is  admissible  in  proof  of  death,  but  that 
rule  has  been  sometimes  relaxed,  as  in  Scott's  lessee  v.  Ratliffe,  5  Pet. 
81.  Where,  as  in  the  present  case,  the  deceased  left  no  kindred  that 
are  known,  the  rule  must  be  relaxed  from  necessity. 

In  this  case,  the  depositions  of  two  witnesses  were  taken,  who  lived 
in  New  Orleans,  and  who  were  present  at  the  marriage  of  Hardie  in 
that  city,  in  1845.  They  testify  that  he  had  but  one  child,  who  died, 
and  that  he,  also  died  of  cholera  in  1849.  His  death  was  announced 
in  the  newspapers,  and  he  was  spoken  of  by  his  acquaintances  as  dead. 
His  widow  subsequently  married  her  present  husband. 

The  instruction  given  for  the  plaintiff  is  not  sufficiently  qualified 
as  a  rule  of  universal  application,  but  in  this  case  it  worked  no  preju- 
dice, as  the  evidence  was  competent  and  sufficient.  In  a  population 
as  unstable  as  ours,  and  comprising  so  many  persons  whose  kindred 
are  in  distant  lands,  the  refusal  of  all  evidence  of  reputation  in  re- 
gard to  death,  unless  the  reputation  came  from  family  relatives,  would 
sometimes  render  the  proof  of  death  impossible,  though  there  might 
exist  no  doubt  of  the  fact,  and  thus  defeat  the  ends  of  justice. 

Judgment  reversed. 


264  Cases  on  Evidencu 

WALL  V.  LUBBOCK. 
52  Tex.  Civ.  .4pp.  408.     (1908) 

Key,  J.  This  is  an  action  of  trespass  to  try  title,  F,  R.  Lubbock 
and  others  being  plaintiffs  and  Q.  A,  Wall  and  his  wife  being  de- 
fendants in  the  court  below.  The  land  involved  is  a  part  of  the  John 
S.  Chiveral  headright  survey  of  1280  acres,  located  in  Sabine  county. 

The  answer  filed  by  the  defendants  embraced  a  general  denial  and 
plea  of  not  guilty  and  limitation  of  three,  five  and  ten  years. 

The  land  was  patented  to  John  S.  Chiveral  in  1845  and  the  plaintiffs 
proved  the  death  of  John  S.  Chiveral  and  that  they  were  his  heirs. 

The  defendants  claimed  the  land  under  a  chain  of  title  alleged  to 
extend  back  to  John  S.  Chiveral.  The  first  deed  in  their  chain  of  title 
is  dated  June  7,  1846,  and  is  executed  by  W.  B.  Frazier,  purporting 
to  act  as  the  agent  and  attorney  for  John  S.  Chiveral.  The  deed 
referred  to  was  not  produced,  but  evidence  was  submitted  tending  to 
prove  its  existence,  loss  and  contents,  and  the  jury,  in  responding  to 
special  issues  submitted  to  them,  found  that  such  deed  was  executed. 
The  plaintiffs  introduced  testimony  tending  to  show  the  death  of 
John  S.  Chiveral  prior  to  the  execution  of  the  deed  referred  to  by 
W.  B.  Frazier,  as  agent  of  Chiveral,  and  the  jury  found  as  a  fact 
that  John  S.  Chiveral  was  dead  at  the  time  Frazier  executed  that 
deed. 

The  first  assignment  of  error  challenges  the  correctness  of  the  trial 
court's  ruling  in  permitting  the  plaintiff,  F.  R.  Lubbock,  to  testify 
concerning  the  death,  and  the  time  thereof,  of  J.  S.  Chiveral,  and  the 
relationship  of  the  plaintiffs  to  him,  the  contention  being  that  the 
testimony  referred  to  was  hearsay  and  not  admissible.  The  witness 
testified  that  his  wife  was  a  daughter  of  G.  H.  Chiveral,  and  that 
C.  H.  Chiveral  was  the  son  of  John  S.  Chiveral.  He  also  testified 
that  John  S.  Chiveral  died  in  1836,  leaving  two  surviving  children; 
only  one  of  whom  is  now  alive.  On  cross-examination  the  witness 
stated  that  at  the  time  of  testifying  he  was  56  years  old,  and  that  he 
did  not  know  John  S.  Chiveral.  Being  asked  how  he  knew  that 
G.  H.  Chiveral  was  related  to  John  S.  Chiveral,  he  answered:  'T 
know  that  John  S.  Chiveral  was  the  father  of  G.  H.  Chiveral  from 
family  history."  In  response  to  another  cross-interrogator,  he  said: 
"When  I  answ^ered  direct  interrogatory  No.  ten  by  saying  that  Jane 
and  G.  H.  Chiveral  were  the  only  heirs  of  John  S.  Chiveral,  I  spok^ 
from  what  I  had  been  told  by  the  family.    I  was  told  by  the  family. 


DECI.ARATIONS  Relating  to  Pedigree  265 

I  was  told  by  the  family  that  they  were  the  children  of  John  S. 
Chiveral  of  Sabine  County  Texas."  It  was  also  shown  that  the  wit- 
ness first  formed  the  acquaintance  of  G.  H.  Chiveral  in  1864  or  1865, 
and  afterwards  married  his  daughter  Elizabeth,  who  is  one  of  the 
plaintiflFs  in  this  suit. 

It  is  well  settled  that  matters  of  pedigree  may  be  proved  by  hearsay 
testimony,  such  as  family  history ;  and  it  has  also  been  held  that  other 
facts  not  entirely  matters  of  pedigree,  may  be  so  intimately  connected 
with  pedigree  as  to  permit  of  their  proof  by  the  same  character  of 
testimony.  (Byers  v.  Wallace,  87  Texas,  511.)  The  witness  was  a 
member  of  the  Chiveral  family,  and  we  think  it  was  competent  for 
him  to  give  testimony  as  to  the  family  history,  including  the  death 
and  time  of  death  of  John  S.  Chiveral,  although  he  did  not  state  that 
he  obtained  his  information  from  members  of  the  family  now  de- 
ceased. (Elliott  on  Evidence,  sees.  360,  366,  371,  378;  Wharton  on 
Ev.  sec.  201;  Jewell  v.  Jewell,  i  How.  (U.  S.)  219,  11  L.  ed.  108; 
Fulkerson  v.  Holmes,  117  U.  S.  389,  29  L.  ed.  915.) 

John  A.  Morris,  a  witness  for  the  plaintiffs,  testified  that  he  first 
became  acquainted  with  the  family  of  John  S.  Chiveral  about  1842 
or  1843 ;  that  the  family  consisted  of  Mrs.  Chiveral  and  a  son  and 
daughter,  that  it  was  generally  understood  at  the  time  in  that  com- 
munity that  John  S.  Chiveral  was  dead,  and  that  Mrs.  Chiveral  was 
recognized  as  a  widow.  This  testimony  was  complained  of  as  hearsay 
and  the  objection  overruled.  While  the  testimony  objected  to  was  hear- 
say, it  seems  to  come  within  one  of  the  exceptions  to  the  rule  which 
excludes  hearsay  testimony,  and  we  therefore  overrule  the  second 
assignment  which  complains  of  the  ruling  admitting  that  testimony,  (i 
Wharton  on  Evidence,  sec.  223 ;  Lessee  of  Scott  v.  Ratcliffe,  5  Peters, 
81,  8  L.  ed.  56;  Primm  v.  Stewart,  7  Texas,  182.) 

Affirmed. 


YOUNG  V.  SHULENBERG. 

J63  N.  Y.  385.     (1901) 

Vann,  J.  The  complaint  charges  the  defendant  with  unlawfully 
entering  upon  the  lands  of  the  plaintiff  and  cutting  down  and  carrying 
away  a  large  number  of  trees  therefrom.  Neither  by  his  answer  nor 
evidence  did  the  defendant  claim  the  right  to  enter  upon  the  land  in 


266  Casks  on  Evidence 

question  or  to  cut  trees  thereon,  but  he  put  at  issue  the  entry  by  him- 
self, as  well  as  the  title  of  the  plaintiff.  The  land  upon  which  the 
tresspass  was  committed  was  virgin  forest  in  the  county  of  Fulton 
that  had  never  been  so  inclosed,  cultivated  or  used  as  to  constitute 
an  adverse  possession.  (Code  Civ.  Pro.  sec.  370.)  The  plaintiff 
proved  a  record  title  thereto,  commencing  in  1794,  when  letters  patent 
were  granted  by  the  state  of  New  York,  and  extending  through 
various  mesne  conveyances  until  1872  when  the  apparent  title  vested 
in  William  Claflin,  of  whom  ip  September,  1893,  the  plaintiff  pur- 
chased by  a  contract  which  imposed  upon  him  the  duty  of  paying 
the  annual  taxes  and  gave  him  the  privilege  of  cutting  and  carrying 
away  timber  upon  certain  conditions.  He  cut  8,000  or  10,000  logs 
every  year  on  the  tract  and  had  such  possession  only  as  may  be  implied 
from  the  foregoing  facts.  (Machin  v.  Geortner,  14  Wend,  239; 
Hunter  v.  Starin,  26  Hun,  529.) 

The  attack  made  upon  the  title  by  the  defendant  is  that  there  is  no 
legal  evidence  to  show  that  Anne  Ellice  and  six  others,  all  residents 
of  England,  who  in  July,  1817,  conveyed  200,000  acres,  including  the 
locus  in  quo,  in  consideration  of  £20,000,  were  the  widow  and  heirs 
at  law  of  Alexander  Ellice,  also  a  resident  of  England,  who  took  title 
from  the  patentee  in  1795.  It  appeared,  however,  that  the  six  deeds 
constituting  the  chain  of  title  from  the  state,  had  all  been  recorded, 
and  that  they  were  all  in  the  possession  of  Mr.  Claflin,  the  last 
grantee,  who  kept  them  together  as  muniments  of  his  title.  It  further 
appeared  that  the  deed  of  1817,  which  was  acknowledged  in  London 
before  the  minister  of  the  United  States  to  Great  Britain,  recited 
that  Alexander  Ellice,  of  London,  died  intestate  and  seized  of  the  said 
premises,  leaving  the  grantors  as  his  widow  and  heirs  at  law. 

Whether  Anne  Ellice  was  the  widow  and  her  co-grantors  the  heirs 
at  law  of  Alexander  Ellice  was  a  question  of  pedigree,  which  owing 
to  the  difficulty  of  producing  living  witnesses  to  prove  remote  events, 
is  an  exception  to  the  rule  excluding  hearsay  evidence.  Pedigree  is 
the  history  of  family  descent,  which  is  transmitted  from  one  genera- 
tion to  another  by  both  oral  and  written  declarations,  and  unless 
proved  by  hearsay  evidence  it  cannot,  in  most  instances,  be  proved 
at  all.  Hence,  declarations  of  deceased  members  of  a  family,  made 
ante  litem  motam,  are  received  to  prove  family  relationship,  includ- 
ing marriages,  births  and  deaths,  and  the  facts  necessarily  resulting 
from  those  events.  (Eisenlord  v,  Clum,  126  N.  Y.  552;  Jackson  v. 
Cooley,  8  Johns.  128;  Jackson  v.  King,  5  Cow.  237;  Jackson  v.  Rus- 
sell, 4  Wend.  277;  Greenleaf's  Ev.  (14th  ed.)  sees.  103-4;  Wharton's 


Declarations  Relating  to  Pedigree  ^"j 

Evidence  (3rd  ed.)  sees.  201  ei  seq.;  Rice  on  Ev.  sec.  220.)  Recitals 
in  an  ancient  deed,  admissible  in  evidence  without  proof  of  contempo- 
raneous possession,  may  be  proved  as  against  persons  who  are  not 
parties  to  it  and  who  do  not  claim  under  it.  (Greenleaf  v.  B.  F.  & 
C.  I.  R.  R.  Co.,  132  N.  Y.  408;  Fulkerson  v.  Holmes,  117  U.  S.  389; 
Deery  v.  Cray,  72  U.  S.  795;  Doe  v.  Davies,  10  A.  &  E.  (N.  R.) 
314;  18  Am.  &  Eng,  Encyc,  263,  266.) 

Before  the  declarations  can  be  received,  however,  as  evidence  of 
pedigree,  it  must  appear  that  the  person  making  them  was  a  mem- 
ber of  the  family  and  that  he  is  dead,  incompetent,  or  beyond  the 
jurisdiction  of  the  court.  Therefore,  before  the  declarations  of  Anne 
Ellice,  as  contained  in  the  recital  of  her  deed,  could  be  received  in 
evidence  on  the  question  of  pedigree,  it  was  necessary  for  the  plaintiff 
to  show  that  she  was  a  member  of  the  family  of  Alexander  Ellice, 
and  that  she  could  not  be  produced  or  testify  owing  to  one  of  the 
contingencies  named.  While  the  law  required  that  her  relationship 
to  the  Ellice  family  should  be  shown  by  evidence  independent  of  her 
own  declarations,  still,  as  was  recently  held  in  an  important  case, 
"but  slight  proof  of  the  relationship  will  be  required,  since  the  rela- 
tionship of  the  declarant  to  the  family  might  be  as  difficult  to  prove 
as  the  very  fact  in  controversy."     (Fulkerson  v.  Holmes,  117  U.  S. 

389-  397-) 

The  proof  of  such  relationship  rested  upon  the  identity  of  the 
family  name,  the  certificate  of  acknowledgment  before  the  United 
States  minister,  and  the  custody  by  the  proper  party  of  the  deeds 
showing  the  title  in  Alexander  Ellice  by  conveyances  running  back 
to  and  including  the  original  patent. 

We  think  the  plaintiff,  established  a  right  to  recover  by  evidence 
which  was  competent  under  the  circumstances  of  the  case,  and,  after 
examining  all  the  exceptions,  we  affirm  the  judgment  appealed  from 
with  costs. 

Parker,  C.  J.,  Bartlett,  Haight,  Martin,  Cullent  and  Werner, 
JJ.,  concur. 

Judgment  affirmed. 


268  Cases  on  Evidence 

LOUISVILLE  &  N.  R.  R.  CO.  v.  KICE. 
7op  Ky.  786.     (1901) 

BuRNHAM,  J.  The  appellee  instituted  this  action  against  appellant 
to  recover  the  value  of  a  thoroughbred  race  horse  alleged  to  have  been 
negligently  killed  by  one  of  appellant's  trains.  Appellant  in  its  an- 
swer admitted  the .  killing  of  the  horse  by  its  train,  but  denied  that 
it  was  guilty  of  any  negligence,  and  alleged  that  the  killing  of  appel- 
lee's horse  was  unavoidable  so  far  as  it  was  concerned.  Several 
months  after  the  institution  of  this  suit  appellee  filed  an  amended  peti- 
tion, in  which  he  alleges  that  the  place  where  the  horse  was  killed 
was  on  the  track  of  the  defendant's  road  adjoining  lands  belonging 
to,  and  occupied  by,  plaintiff;  that  he  had  not  received  compensation 
for  fencing  his  land  along  the  road  at  that  point;  and  asked  that,  if  he 
was  not  allowed  the  full  value  of  the  horse,  he  have  judgment  for  one- 
half  of  such  amount.  To  the  filing  of  this  amended  petition  appel- 
lant objected  on  the  ground  that  a  distinct  and  separate  cause  of  action 
was  set  up.  Appellant's  objections  were  overruled,  and  the  amended 
petition  permitted  to  be  filed. 

Another  ground  of  complaint  is  that  the  trial  court  permitted  wit- 
nesses for  appellee  to  testify  as  to  the  pedigree  of  the  horse  killed,  as 
shown  by  the  American  stud  books.  Undoubtedly  the  pedigree  of  a 
race  horse  constitutes  an  important  element  in  determining  its  value, 
as  it  is  a  matter  of  common  knowledge  that  a  much  larger  propor- 
tion of  thoroughbred  horses  are  successful  racers  than  horses  not  so 
bred.  It  appears  from  the  testimony  that  the  stud  books  in  question 
are  records  carefully  compiled  by  experts  under  the  supervision  of 
the  breeders  of  this  class  of  horses,  and  that  they  have  been  so  kept 
for  many  years,  and  are  universally  accepted  as  conclusive  evidence 
upon  this  point  by  persons  dealing  in  such  animals.  Section  1325  of 
the  Ken.  Statutes  provides  severe  penalties  for  furnishing  false  pedi- 
grees of  stock,  and  we  are  of  the  opinion  that  the  court  did  not  err 
in  permitting  the  witnesses  to  testify  as  to  the  pedigree  of  the  animal 
killed  as  shown  by  these  records. 

Judgment  affirmed. 


D^CIvARATlONS  Re;i.ATING  TO  PedIGREE  269 

SITLER  V.  GEHR. 
105  Penn.  St.  577.     (1884) 

Ejectment,  brought  May  22,  1882,  by  Baltzer  Gehr  against  David 
Sitler  (tenant)  Samuel  H.  Rothermel  et  al.,  heirs  of  Maria  Rother- 
mel,  deceased,  and  George  F.  Miller  and  Amanda,  his  wife,  in  her 
right,  et  al.,  devisees  of  Hannah  Nicely,  deceased ;  to  recover  an  un- 
divided one-third  part  of  a  messuage  and  tract  of  land,  containing 
231  acres,  situate  in  Maxatawny  township,  Berks  county.  Plea,  not 
guilty. 

Plaintiff  called  as  a  witness  Solomon  Gehr,  a  nephew  of  plaintiff, 
who  had  married  a  daughter  of  John  Gehr,  deceased,  who  also  was 
a  nephew  of  the  jplaintiff,  and  proposed  to  prove  by  the  witness  the 
declarations  by  the  said  John  Gehr,  in  his  lifetime  as  to  the  relation- 
ship of  Baltzer  Gehr,  the  plaintiff  and  Balser  Gehr  of  Berks  county. 

Offer  objected  to  as  hearsay  evidence ;  that  while  hearsay  testimony 
is  allowable  to  prove  pedigree  and  relationship,  it  is  only  such  hear- 
say as  is  within  the  rules  of  evidence  governing  its  admission,  which 
the  present  offer  is  not ;  that  before  such  declarations  can  be  admitted, 
it  must  be  proved  by  evidence  aliunde  to  the  satisfaction  of  the  court 
that  John  Gehr  was  a  member  of  this  family  of  Balser  Gehr  of  Berks 
county. 

Paxson,  J,  The  first  five  assignments  of  error  may  be  considered 
together.  They  raise  the  question  of  the  admissibility  of  the  declara- 
tions of  Anna  Maria  Gehr  and  John  Gehr  upon  a  question  of  pedi- 
gree. The  purpose  of  offering  said  declarations  was  to  establish 
relationship  between  the  plaintiff  and  Balser  Gehr,  of  Berks  county. 
The  evidence  was  objected  to  because  it  was  not  shown  aliunde  that 
the  declarants  were  of  the  family  of  'the  Berks  county  Balser  Gehr. 
The  evidence  was  admitted  and  bill  sealed  for  the  defendants. 

The  rules  of  evidence  applicable  to  pedigree  cases  are:  i.  That 
the  statements  must  be  made  ante  litem  motam.  2.  Declarant  must 
be  dead.  And  3.  But  a  prior  condition  to  both  these  is,  that  it  should 
be  proved  by  some  source  of  evidence  independent  of  the  statement 
itself,  that  the  person  making  the  statement  is  related  to  the  family 
about  which  he  speaks :     Smith  v.  Tebbitt,  L.  R.  i  P.  &  D.,  354. 

It  was  not  denied  that  the  first  two  conditions  had  been  fulfilled. 
Neither  was  it  questioned  that  the  declarants  were  shown  by  evidence 
dehors  the  declaration  to  be  related  to  the  family  of  Joseph  Gehr, 
the  ancestor  of  the  plaintiff,  but  it  was  contended  that  the  declarants 


270  Cases  on  Evidence 

must  be  shown  by  evidence  aliunde  to  be  related  to  Balser  Geehr,  of 
Berks  county ;  in  other  words,  to  the  person  last  seised  of  the  estate, 
or  his  particular  branch  of  the  family.  To  state  the  question  in  an- 
other form :  the  declarants  were  Anna  Maria  Gehr  and  John  Gehr ; 
the  plaintiffs'  ancestor  was  Joseph  Gehr ;  the  deceased  ancestor  was 
Balser  Gehr,  of  Berks  county.  It  was  not  denied  that  the  declarants 
were  of  the  family  of  Joseph  Gehr,  and  it  was  attempted  to  show 
by  their  declarations  that  the  above  named  Joseph  Gehr  and  Balser 
Geehr  were  related  to  each.  The  question  was,  whether  sufficient 
ground  had  been  laid  for  such  declarations. 

The  plaintiffs  in  error  contend,  not  only  that  the  declarants  must  be 
shown  by  evidence  aliunde  to  be  related  to  the  family  as  to  which  the 
declarations  were  made,  but  also  that  they  must  also  be  thus  shown 
to  be  related  to  the  person  who  died  seised.  The  first  part  of  this 
proposition  is  undoubtedly  true  under  all  the  authorities ;  the  latter 
portion  of  it  is  not  so  clear.  I  have  carefully  examined  all  the  author- 
ities cited  on  both  sides  upon  this  point,  and  any  others  to  which  our 
attention  was  not  called  upon  the  argument,  and  although  there  is 
some  conflict  in  the  cases  the  weight  of  authority  seems  to  be  that 
while  a  declarant  must  be  shown  by  evidence  aliunde  to  belong 
to  the  family,  it  does  not  appear  to  be  necessary  to  show  that  he  be- 
longs to  the  same  branch  of  it.  In  Vowles  v.  Young,  13  Vesey,  147, 
it  was  held  that  the  declarations  of  a  deceased  husband  concerning 
the  descent  or  pedigree  of  his  wife  are  admissible.  And  in  Jewell 
V.  Jewell,  I  Howard,  219,  that  the  declarations  of  a  deceased  hus- 
band of  one  of  the  plaintiffs  claiming  as  heir  of  her  father,  that  his 
wife  was  not  married  to  her  father,  were  admitted. 

It  would  seem,  however,  that  the  declarations  of  a  husband  in  regard 
to  his  wife's  family  or  of  a  wife  in  regard  to  her  husband's  rest  sub- 
stantially upon  the  same  principles  as  those  of  a  relation  by  blood 
and  these  cases  do  not  throw  much  light  upon  the  question  we  are 
considering. 

Blackburn  v.  Crawfords,  3  Wall.  185,  also  cited  by  plaintiffs  in 
error,  does  not  sustain  their  contention.  In  this  case  the  question  was, 
whether  Dr.  Crawford  had  been  married  to  Elizabeth  Taylor.  The 
plaintiffs  claimed  to  be  his  nieces  and  nephew.  To  prove  this  rela- 
tionship they  offered  the  declaration  of  one  Sarah  Evans,  who  was  a 
sister  of  Elizabeth  Taylor.  The  evidence  was  held  incompetent  be- 
cause she  did  not  belong  to  the  family.  The  question  was,  who  were 
Dr.  Crawford's  heirs.  It  was  said  by  Mr.  Justice  Swayne^  in  deliv- 
ering the  opinion  of  the  court :    "If  it  had  been  proved  by  independent 


DecIvArations  Relating  to  Pedigree  271 

testimony  that  Sarah  Evans  was  related  by  blood  to  any  branch  of 
the  family  of  David  Crawford,  and  her  declaration  had  been  offered 
to  prove  the  relationship  of  another  person  claiming  or  claimed  to 
belong  also  to  that  family,  this  case,  Monkton  v.  Attorney-General,  2 
Russ.  &  M.  157,  would  have  been  in  point.  But  this  declaration  of 
Sarah  Evans  offered  to  prove  that  her  sister  was  connected  by  mar- 
riage with  a  member  of  that  family,  was  neither  within  the  principle 
nor  the  language  of  that  authority." 

The  whole  question  is  thus  summed  up  by  Mr.  Wharton  in  his  work 
on  Evidence,  page  216:  "Declarations  as  to  a  family  in  order  to  be 
received  must  emanate  from  deceased  persons  connected  with  such 
family  by  blood  or  marriage."  The  same  rule  is  laid  down  in  most 
of  the  approved  text  books.  See  Phillips  on  Ev.  sec.  275 ;  Taylor 
on  Ev.  576.  The  last  case  to  which  I  shall  refer  is  that  of  Monkton 
V.  Attorney-General,  2  Rus.  &  M.  157,  where  it  was  said  by  Lord 
Brougham :  "I  entirely  agree  that  in  order  to  admit  hearsay  evidence 
in  pedigree,  you  must  by  evidence  dehors  the  declarations  connect 
the  person  making  them  with  the  family.  But  I  cannot  go  the  length 
of  holding  that  you  must  prove  him  to  be  connected  with  both  branches 
of  the  family,  touching  which  his  declaration  is  tendered.  That  he 
is  connected  with  the  family  is  sufficient;  and  that  connection  once 
proved,  his  declarations  are  then  let  in  upon  questions  touching  that 
family;  not  declarations  of  details  which  would  not  be  evidence  but 
declarations  of  the  nature  of  pedigree ;  that  is  to  say,  of  who  was 
related  to  whom,  by  what  links  the  relationship  was  made  out,  whether 
it  was  a  relationship  of  consanguinity  or  of  affinity  only  when  the  par- 
ties died,  or  whether  they  are  actually  dead ;  everything  in  short,  which 
is  strictly  speaking,  matter  of  pedigree,  may  be  proved  as  matter 
relating  to  the  condition  of  the  family  by  the  declarations  of  deceased 
persons,  who  by  evidence  dehors  those  declarations,  have  been  previ- 
ously connected  with  the  family  respecting  which  their  declarations 
are  tendered." 

The  learned  Judge  below  was  satisfied  and  received  the  evidence. 
We  cannot  say  he  was  wrong.  The  plaintiff  was  a  competent  wit- 
ness, made  so  by  law,  and  his  testimony,  as  to  his  relationship  with 
Balser  Gehr,  of  Berks  county,  was  properly  received.  It  is  true  his 
information  was  derived  from  his  mother,  and  was  to  that  extent 
hearsay.  But  a  large  proportion  of  the  knowledge  which  every  in- 
telligent man  has  is  derived  from  hearsay.  Indeed  we  scarcely  realize 
how  little  we  actually  know  from  our  own  observation  and  investi- 
gation.   We  learn  the  truths  of  history,  the  secrets  of  science  and  our 


272  Cases  on  Evidence 

knowledge  of  the  world  generally,  from  what  we  have  read,  or  from 
what  others  have  told  us.  What  does  a  man  know  of  his  deceased 
ancestors  but  what  he  has  learned  from  his  immediate  relatives? 
How  was  the  plaintiff  who  had  never  seen  Balser  Gehr  of  Berks 
county,  to  know  that  the  latter  was  his  uncle  except  from  his  mother? 
It  is  in  just  such  cases  that  the  strict  .rules  of  evidence  are  relaxed 
as  regards  hearsay.  If  it  were  otherwise  pedigree  could  not  be 
proved  at  all  in  many  cases,  and  in  one  sense  it  is  primary  not  sec- 
ondary evidence.  The  law  upon  this  point  is  clearly  stated  in  i 
Wharton's  Ev.  sec.  201 :  "Pedigree  from  the  nature  of  things,  is 
open  to  proof  by  hearsay  in  respect  to  all  family  incidents,  as  to 
which  no  living  witness  can  be  found.  If  what  has  been  handed 
down  in  families  cannot  be  in  this  way  proved,  pedigree  could  not, 
in  most  cases,  be  proved  at  all.  Nor  is  such  tradition,  in  its  best  sense, 
open  to  the  objections  applicable  to  hearsay. 

We  cannot  say,  therefore,  that  the  plaintiff  was  an  incompetent 
witness  to  prove  his  relationship  to  the  Balser  Gehr,  of  Berks  county, 
nor  that  his  testimony  was  incompetent  from  the  fact  that  his  knowl- 
edge upon  that  subject  was  derived  from  his  deceased  mother.  She 
always  told  him  that  Balser  Gehr  was  his  uncle;  it  was  a  part  of  their 
family  history;  one  of  their  family  traditions,  furnished  by  one  who 
had  the  means  of  knowledge  and  no  possible  motive  to  falsify,  so  far 
as  appears  in  the  case. 

'  Judgment  affirmed. 


VANTINE  v.  BUTLER. 
240  Mo.  521.     (1911) 


Woodson,  J.  This  cause  is  in  this  court  by  appeal  on  the  part 
of  the  defendants,  Mary  Butler,  Louititia  Phelan  and  Mary  Butler, 
the  younger,  and  Vincent  D.  Phelan,  executors  of  the  last  will  and 
testament  of  John  Butler,  deceased,  defendants  in  the  above  entitled 
cause,  from  a  decree  and  judgment  of  the  Circuit  Court  of  Boone 
county,  Missouri,  in  favor  of  the  plaintiff  establishing  her  right  as 
a  pretermitted  heir. 

The  sole  ground  assigned,  by  counsel  for  appellants,  for  a  reversal 
of  the  judgment  is  thus  stated :  "The  court  committed  error  in  ad- 
miting  the  testimony  of  certain  witnesses  as  to  the  identity  of  Jane 


Declarations  Relating  to  Pedigree  273 

Butler's  own   declaration  with  no  other  proof,  and  also  as  to  her 
relation  to  John  Butler  for  the  same  reason." 

"The  fact  of  the  relationship  of  the  declarant  must  be  established 
by  evidence  other  than  her  own  declaration  before  the  declaration 
became  admissible,"  or  to  put  it  another  way,  "Not  only  is  it  neces- 
sary in  order  that  the  declaration  of  a  person  afterwards  deceased 
should  be  admissible  in  cases  of  pedigree,  that  the  declarant  should 
have  been  related  to  the  family  in  question  or  connected  with  the  same 
by  marriage,  but  this  relationship  must  be  established  by  some  proof 
other  than  the  declaration  itself."  Or  further,  the  rules  of  evidence 
governing  statements  of  this  kind  are : 
,  I.     The  statement  must  be  made  ante  litem  motam. 

2.  A  prior  condition  to  both  of  these  is,  that  it  should  be  proved 
by  some  source  of  evidence  independent  of  the  statement  itself,  that 
the  person  making  the  statement  is  related  to  the  family  of  which 
she  speaks. 

In  support  of  that  proposition  we  are  cited  to  the  following  author- 
ities :  I  Wharton  on  Evidence,  p.  209 ;  Elliot  on  Evidence,  sec.  380 
and  381;  Wigmore  on  Evidence,  sec.  1490;  16  Cyc.  1229;  Kennedy's 
Trial  Evidence,  p.  22;  2  Jones  on  Evidence,  p.  712. 

In  brief,  the  position  of  counsel  for  appellant  is  this:  That  there 
is  no  evidence  whatever  preserved  in  this  record,  which  shows  or 
warranted  the  trial  court  in  finding  that  the  woman  and  child  who 
appeared  in  Paris,  in  October,  1863,  and  known  as  Jane  Butler  and 
Lizzie  Butler,  were  the  wife  and  child  of  John  Butler,  late  of  Stur- 
geon, Boone  county,  Missouri,  or  that  Jane  and  Lizzie  were  their 
true  names,  save  and  except  in  declarations  of  the  former,  to  the 
effect  that  such  were  their  names,  and  that  they  bore  those  relations 
to  him. 

Under  the  authorities  cited,  counsel  insist  that  these  declarations 
were  inadmissible  in  evidence  for  the  reasons  previously  stated;  and 
that  they  should  be  stricken  out  by  this  court,  the  judgment  reversed 
and  the  bill  dismissed,  for  the  reason  that  when  so  stricken  out,  there 
would  remain  no  sufficient  evidence  to  support  the  findings  of  the 
court. 

The  clearest  and  soundest  statement  of  the  rule  governing  the  ad- 
mission of  declarations  of  persons  as  to  pedigree  and  relationship,  is 
stated  in  16  Cyc.  1229,  as  follows : 

"Notwithstanding  an  early  tendency  to  regard  intimate  acquaintance 
with  the  family  as  a  sufficient  basis  for  knowledge  as  to  facts  of 
pedigree,   and   so  to   receive   the   declarations   of   family  physicians, 


274  Cases  on  Evidenci; 

intimate  friends,  persons  living  in  the  family,  or  servants  and  other 
persons  having  adequate  knowledge  of  facts  of  family  genealogy  or 
opportunities  for  acquiring  it,  the  rule  is  now  settled  that,  both  in 
cases  of  reputation  and  of  direct  statements,  the  only  competent  de- 
clarants are  those  related  to  the  family;  and  that  consequently  the 
declarations  as  to  pedigree  made  by  intimate  friends,  neighbors,  or 
even  by  persons  living  in  the  family,  or  by  servants,  however  trust- 
worthy or  long  employed  in  the  family,  are  incompetent. 

"A  second  condition  of  relevancy  is  that  the  declarant  should  be 
disinterested  to  the  extent  of  having  no  motive  which  can  fairly  be 
assumed  to  be  such  as  would  induce  him  to  state  the  fact  otherwise 
than  as  he  understood  it.  The  statement  therefore  must  be  shown 
to  have  been  made  ante  litem  motam;  a  fortiori,  before  com- 
mencement of  a  suit  involving  the  issue  to  which  the  declaration 
relates.  It  is  not  material,  however,  that  a  controversy  has  arisen 
regarding  a  cognate  matter,  unless  indeed  it  clearly  foreshadows  one 
on  the  precise  subject-matter  of  the  declaration;  that  a  controversy, 
since  entirely  abated,  once  existed ;  or  that  a  state  of  affairs  is  known 
to  exist  out  of  which  a  Controversy  may  at  any  time  arise.  On  the 
other  hand,  the  declaration  is  inadmissible  if  a  controversy  in  fact 
exists,  although  the  declarant  be  ignorant  of  it,  or  it  has  not  reached 
the  state  of  litigation.  A  declaration,  made  expressly  with  a  view  to 
a  probable  future  contest  is  admissible  quantum  valeat;  but  declara- 
tions made  in  the  process  of  collecting  evidence  to  substantiate  the 
claim  involved  in  a  subsequent  lis  are  incompetent. 

"It  is  universally  held  that  declarations  in  pedigree  cases  are  not 
admissible  imless  the  declarant  is  dead." 

Some  of  the  States  announce  a  more  liberal  rule;  for  instance  the 
Court  of  Appeals  of  California,  in  the  case  of  In  re  Clark's  Estate. 
1 10  Pac.  828,  held  that  the  declarations  of  the  deceased  father  of 
claimants  to  the  estate  of  an  intestate  that  the  intestate  was  his  sister, 
made  in  the  lifetime  of  the  intestate,  were  admissible  without  extrinsic 
preliminary  proof  of  the  relationship  of  the  father  to  the  intestate. 

This  same  general  principle  seems  to  be  supported  by  the  following 
authorities :  2  Wigmore  on  Ev.  sec.  1491 ;  In  re  Hartman's  Estate, 
107  Pac.  (Cal.)  105;  Overby  v.  Johnston,  42  Tex.  Civ.  438;  Fowler 
V.  Simpson,  79  Tex.  614 ;  Sitler  v.  Gehr,  105  Pac.  577 ;  Smith  v.  Smith, 
140  Wis.  599;  Hubatka  v.  Meyerhofer,  79  N.  J.  L.  264;  Mann  v. 
Cavanaugh,  110  Ky.  776. 

In  our  opinion,  the  former  rule  is  the  wiser  and  more  sound  of  the 
two,  for  the  reason  that  if  the  preliminary  proof  of  relationship  is 


Declarations  Relating  to  Pedigree  275 

not  required,  great  injustice  might  be  done,  or  a  gross  fraud  perpe- 
trated by  a  designing  person,  by  simply  declaring  that  he  or  some 
member  of  his  family  was  related  to  a  deceased  person,  whc?  has  no 
opportunity  to  contradict  the  statement,  or  disprove  the  fact. 

It  should  be  borne  in  mind,  that  such  evidence  is  purely  hearsay, 
unsanctioned  by  any  form  of  oath,  therefore  no  punishment  could 
be  inflicted  upon  the  declarant  while  living,  for  his  prevarication,  nor 
successfully  combatted  in  many  cases  after  death.  For  this  reason, 
it  seems  to  us,  that  a  reasonable  weight  of  preliminary  proof  of  re- 
lationship should  be  required  before  receiving  the  declarations  of 
such  witnesses.  In  other  words,  all  reasonable  precautions  should  be 
used  to  protect  the  fountain  source  of  such  evidence,  which  at  best 
is  very  unsatisfactory,  from  fraud  and  pollution.  The  degree  of  such 
proof  must  of  necessity  depend  largely  upon  the  facts  and  circum- 
stances of  each  particular  case,  and  no  hard  and  fast  or  unbending 
iron  rule  can  be  laid  down  and  enforced  alike  in  all  cases. 

The  following  cases  will  somewhat  illustrate  the  degree  of  such 
proof  that  is  required  in  a  case:  Fulkerson  v.  Holmes,  117  U.  S.  i. 
c:  397;  Vowles  v.  Young,  13  Ves.  147;  Monkton  v.  Attorney-General, 
2  Russ.  &  M.  157;  Young  v.  Schullenberg,  165  N.  Y.  385;  In  re 
Bobb's  Estate,  37  S.  C.  19;  Brown  v.  Lazarus,  5  Tex.  Civ.  105,  81; 
Fowler  v.  Simpson,  supra;  Louder  v.  Schluter,  78  Tex.  105,  22  Am. 
&  Eng.  Ency.  Law  (2nd  ed.)  644  and  cases  cited;  Layton  v.  Kraft, 
98  N.  Y.  S.  72. 

So  considering  this  case  under  the  rule  of  the  law  thus  enunciated, 
were  the  declarations  of  Mrs.  Jane  Butler,  regarding  the  relationship 
she  and  Lizzie  Butler,  the  respondent  in  this  case  bore  to  John  Butler 
of  Sturgeon,  Missouri,  admissible  in  evidence? 

In  our  opinion,  that  question  should  be  answered  in  the  affirmative, 
for  the  reason  that  in  our  judgment  this  record  abounds  with  such 
preUminary  proof,  and  is  ample  to  satisfy  even  a  more  stringent  rule 
than  that  announced  by  the  authorities  before  mentioned. 

We,  therefore,  affirm  the  judgment.    All  concur. 


276  Cases  on  Evidence 

CITIZENS'  RAPID  TRANSIT  CO.  v.  DEW. 
100  Tenn.  318.     (18(^7) 

Wilkes,  J.  This  is  an  action  for  negligently  injuring  and  killing 
a  dog.  It  was  commenced  before  a  Justice  of  the  Peace,  and,  on 
appeal,  was  tried  in  the  Circuit  Court,  before  the  court  and  a  jury. 
There  have  been  two  trials  the  first  resulting  in  a  mistrial,  and  the 
second  in  a  verdict  and  judgment  for  $250,  and  defendant.  Rapid 
Transit  Company,  has  appealed  and  assigned  many  errors. 

Much  evidence  is  given  in  the  case  upon  the  question  of  the  dog's 
pedigree  and  ancestry.  The  objections  are  made  that  these  matters 
are  attempted  to  be  proven  by  general  reputation,  and  this  is  char- 
acterized as  hearsay.  But  the  question  of  pedigree  and  ancestry  is 
a  matter  of  common  or  general  reputation,  whether  the  question  con- 
cerns horses,  cattle,  dogs,  or  men.  The  matter,  from  the  very  nature 
of  things  depends  upon  reputation  or  common  repute.  It  is  shown 
that  certain  books  are  kept,  and  in  them  is  shown  a  registration  of 
pedigrees  kept  up  for  the  information  of  the  public,  not  only  as  to 
horses,  but  also  as  to  cattle  and  dogs.  These  are  shown  to  be  re- 
ceived as  satisfactory  evidence  of  pedigree  in  the  same  manner  and 
upon  the  same  idea  as  entries  in  family  records  of  births,  deaths,  and 
marriages  are  received  with  regard  to  the  human  family.     18  Am. 

6  Eng.  Encyc.  L.  258;  Flowers  v.  Haralson,  6  Yer.  494;  Rogers  v. 
Park,  4  Hum.  480;  Swink  v.  Frence,  11  Lea.  79;  Morris  v.  Swaney, 

7  Heis,  591 ;  Ford  v.  Ford,  7  Hum.  92.  It  is  true,  that  in  family 
records  the  entries  in  the  books  are  usually  made  by  the  relatives 
and  friends  of  the  person,  but  inasmuch  as  dogs  have  no  relatives 
competent  to  make  entries  for  them,  it  is  allowable  for  such  entries 
to  be  made  by  the  owners,  friends,  and  admirers  of  the  dog. 

Upon  the  general  question  as  to  the  admissibility  of  evidence  of 
the  dog's  pedigree,  and  the  qualities  and  performances  of  his  an- 
cestors, we  think  there  can  be  no  doubt  that  such  evidence  is  com- 
petent. It  is  certainly  competent  to  show  pedigree  upon  the  question 
of  value  of  horses,  cattle,  and  even  sheep  and  swine — their  diflFerent 
strains  of  blood,  and  especially  as  to  horses  and  cows  it  is  competent 
to  show  the  qualities  of  the  sires  and  dams  and  more  remote  ancestry, 
as  these  matters  enter  largely  into  the  question  of  values.  It  is  a 
matter  of  common  knowledge  that  the  same  questions  enter  in  the 
consideration  of  the  value  of  dogs,  not  only  such  as  are  kept  for 
common  use,  such  as  guard  dogs,  shepherd  dogs,  Newfoundland  dogs, 


Declarations  Against  Deceased  277 

but  also  such  as  are  kept  for  sporting  purposes,  such  as  grey,  blood, 
and  fox  hounds,  bird  dogs  and  others.  There  are  high  and  low  de- 
grees among  dogs  as  well  as  among  men,  and  while  the  common 
coon  dog  has  his  value,  it  is  not  the  same  as  that  of  the  trained 
bird  dog  or  the  trained  bloodhound.  It  is  a  matter  of  common  knowl- 
edge and  observations  that  certain  strains  of  blood  among  horses  add 
materially,  if  they  do  not  entirely  fix  their  values,  and  so  among  cows, 
hogs  and  sheep,  and  even  among  chickens  and  turkeys.  Different 
strains  of  blood  horses  are  valuable  because  it  is  found  that  for  gen- 
erations the  achievements  of  horses  of  that  strain  have  been  note- 
worthy upon  the  turf  and  elsewhere,  and  so  with  dogs  these  qualities, 
as  a  matter  of  common  observation,  are  much  the  same  in  the  same 
strain  for  generation  after  generation.  We  think  there  is  no  error 
in  admitting  evidence  upon  these  matters  of  pedigree,  and  the  repu- 
tation of  this  particular  dog  killed  is  shown  to  have  had  what  in  dog 
circles,  is  regarded  as  "blue  blood,"  and  among  these  he  belongs  to 
the  inner  circles  of  the  four  hundred,  a  member  of  the  F.  F.  T.  or 
First  Families  of  Tennessee. 

Affirmed. 


DEOLABATIONS  AGAINST  INTEREST  BY  PEBSONS  SINCE  DECEASED.i 

DEAN  V.  WILKERSON. 
126  Ind.  338.     (i8po) 

Coffey,  J.  This  was  an  action  by  the  appellee  against  the  ap- 
pellant on  a  promissory  note  executed  by  the  appellant  to  the  appellee. 
The  defense  sought  to  be  established  in  the  Circuit  Court  was  that 
the  note  in  suit  was  executed  without  any  consideration. 

The  note  was  executed  in  renewal  of  two  other  notes  executed 
by  the  appellant  to  Thomas  Wilkerson,  the  father  of  the  appellee, 
found  in  the  possession  of  the  appellee,  but  not  endorsed  to  him. 

It  was  contended  by  the  appellant  in  the  Circuit  Court  that  the 
notes,  in  renewal  of  which  the  note  in  sui't  was  executed  were  the 
property  of  Thomas  Wilkerson,  and  for  that  reason  the  note  in  suit, 
having  been  made  payable  to  the  appellee  was  without  any  considera- 
tion. 


1  Hughes  on  Evidence,  p.  97. 


278  Cases  on  Evidence 

On  the  other  hand  it  was  contended  by  the  appellee  that  the  two 
notes  in  renewal  of  which  the  note  in  suit  was  executed  had  been 
given  to  him  by  Thomas  Wilkerson,  the  father,  in  a  distribution 
among  his  children  of  the  notes  held  by  the  father. 

The  evidence  as  to  whether  the  appellee  was  the  owner  of  the 
two  notes  above  mentioned  was  conflicting.  We  will  not  undertake 
to  weigh  the  evidence.  The  objection,  therefore,  that  the  verdict  of 
the  jury  is  not  supported  by  the  evidence  cannot  be  sustained. 

Finally,  it  is  contended  by  the  appellant  that  the  court  erred  in 
admitting  the  evidence  of  Alonzo  G.  Smith,  Lafayette  Wilkerson  and 
Charles  D.  Butler. 

The  evidence  of  these  witnesses  consisted  of  declarations  made  by 
Thomas  Wilkerson,  father  of  the  appellee,  who  departed  this  life 
before  the  trial  of  the  cause,  to  the  efifect  that  he  had  made  a  gift  to 
the  appellee  of  the  notes  in  consideration  of  which  the  note  in  suit 
was  executed. 

These  declarations  were  made  in  the  absence  of  the  appellant,  and 
as  Thomas  Wilkerson  was  not  a  party  to  the  suit  it  is  contended  that 
his  declarations  constituted  hearsay  evidence,  and  that  they  were  not, 
for  that  reason,  admissible. 

It  is  to  be  observed  that  Thomas  Wilkerson  was  dead  and  could  not 
be  produced  in  court  as  a  witness  on  behalf  of  the  appellee.  The 
declarations  introduced  in  evidence  were  against  the  interests  of 
Thomas  Wilkerson,  and  related  to  a  fact  about  which  he  possessed 
competent  knowledge.  This  constitutes  one  of  the  exceptions  to  the 
general  rule  upon  the  subject  of  hearsay  evidence,  i  Greenleaf  Ev., 
section  147;  Royse  v.  Leaming,  72  Ind.  182. 

Mr.  Greenleaf,  vol.  i,  sec.  148,  in  discussing  the  admissibility  of  this 
class  of  evidence,  says :  "The  ground  upon  which  this  evidence  is 
received,  is  the  extreme  improbability  of  its  falsehood.  The  regard 
which  men  usually  pay  to  their  own  interests  is  deemed  a  sufficient 
security,  both  that  the  declarations  were  not  made  under  any  mis- 
take of  fact,  or  want  of  information  on  the  part  of  the  declarant, 
if  he  had  the  requisite  means  of  knowledge,  and  that  the  matter  de- 
clared is  true." 

We  cannot  presume  that  Thomas  Wilkerson  did  not  possess  knowl- 
edge as  to  whether  he  made  a  gift  to  his  son  James  of  the  notes,  con- 
stituting the  consideration  of  the  note  in  suit;  nor  can  we  presume 
he  would  declare  he  had  parted  with  his  title  unless  such  declaration 
was  true.  In  our  opinion  the  court  did  not  err  in  admitting  this  evi- 
dence. 


DecIvArations  Against  Deceased  279 

There  is  no  error  in  the  record  for  which  the  judgment  should  be 
reversed. 

Judgment  affirmed. 


KEESLING,  Treas.  et  al.  v.  POWELL. 
I4P  Ind.  S72.     (1897) 

McCabE,  J.  The  appellee  sued  the  appellants,  treasurer,  auditor, 
and  commissioners  of  Cass  county,  to  enjoin  the  sale  of  a  certain 
described  lot  or  piece  of  real  estate  in  Logansport,  in  said  county,  for 
the  alleged  delinquent  taxes,  and  to  cancel  said  tax  as  the  same  stands 
charged  on  the  duplicate,  on  the  ground  that  the  same  had  been  paid. 
A  trial  of  the  issues  joined  and  resulted  in  a  finding  and  judgment 
for  the  plaintiff,  over  defendant's  motion  for  a  new  trial. 

The'refusal  of  a  new  trial  is  questioned  by  the  assignment  of  errors, 
that  being  the  only  question  presented  by  the  appeal.  The  grounds 
of  the  motion  for  a  new  trial  are  that  the  finding  is  contrary  to  law 
and  the  evidence,  and  not  supported  by  sufficient  evidence,  and  error 
in  the  admission  of  certain  evidence. 

The  evidence,  the  admission  of  which  is  complained  of,  was  the 
testimony  of  the  plaintiff,  who  being  about  to  purchase  the  lot  in  ques- 
tion, inquired  of  the  deputy  treasurer,  one  WilHam  H.  Forrest, 
whether  said  taxes  were  paid  or  not.  And  it  is  further  objected  that 
the  public  cannot  be  estopped  by  the  declarations  of  its  officials  re- 
specting th,e  public  revenues.  But  it  is  a  mistake  to  suppose  that  the 
object  of  the  testimony  was  to  estop  anybody.  The  issue  on  trial  was 
whether  the  tax  in  question  had  been  paid.  There  was  no  attempt 
to  defeat  the  collection  of  the  tax  on  any  other  ground  than  that  it 
had  been  actually  paid. 

The  evidence  shows  that  the  deceased  deputy  treasurer  whose  dec- 
larations were  put  in  evidence  had  the  requisite  means  of  knowing 
whether  the  matter  declared  was  true.  It  also  appears  that  it  would 
be  against  the  interest  of  the  deputy  treasurer,  who  practically  per- 
formed all  the  duties  of  the  county  treasurer,  to  admit  or  declare 
that  these  taxes  had  been  paid  if  they  in  fact  had  not.  It  might  result 
in  making  the  treasurer  liable  on  his  bond  for  the  same,  and  the 
deputy  liable  to  the  treasurer,  if  in  fact  they  had  been  paid  to  the 
deputy  treasurer.     In  Royse,  Exr.  v.  Leaming,  72  Ind.,  at  p.   184, 


28o  Cases  on  Evidence 

Woods,  J.  speaking  for  the  court,  said:  "If  the  action  of  the  court 
in  admitting  this  testimony  can  be  upheld,  it  must  be  on  the  ground 
that  the  declarations  in  question  are  secondary  evidence,  receivable 
only  because  of  the  death  of  the  person  who  made  them.  Upon  this 
subject,  the  following  language  is  found  in  i  Greenleaf  Evidence,  sec. 
147;  'This  class  embraces  not  only  entries  in  books,  but  all  other 
declarations  or  statements  of  facts,  whether  verbal  or  in  writing,  and 
whether  they  were  made  at  the  time  of  the  fact  declared  or  at  a 
subsequent  day.  But,  to  render  them  admissible,  it  must  appear  that 
the  declarant  is  deceased ;  that  he  possessed  competent  knowledge 
of  the  facts,  or  that  it  was  his  duty  to  know  them ;  that  the  declara- 
tions were  at  variance  with  his  interest.  When  these  circumstances 
concur,  the  evidence  is  received,  leaving  its  weight  and  value  to  be 
determined  by  other  considerations.'  "  And  in  Dean  v,  Wilkerson, 
126  Ind.  340,  Coffey,  J.,  speaking  for  the  court,  said  "It  is  to  be 
observed  that  Thomas  Wilkerson  was  dead  and  could  not  be  pro- 
duced in  court  as  a  witness  in  behalf  of  the  appellee.  The  declara- 
tions introduced  in  evidence  were  against  the  interests  of  Thomas 
Wilkerson,  and  related  to  a  fact  about  which  he  possessed  competent 
knowledge.  This  constitutes  one  of  the  exceptions  to  the  general 
rule  upon  the  subject  of  hearsay  evidence,  i  Greenleaf  Ev.  sec.  147; 
Royse  exr.  v.  Leaming,  72  Ind.  182. 

Following  these  decisions,  as  we  do,  there  was  no  error  in  admit- 
ting the  declarations  of  the  deceased  deputy  treasurer  in  evidence. 

The  Circuit  Court  did  not  err  in  overruling  the  appellants'  motion 
for  a  new  trial. 

Judgment  affirmed. 


COUNTY  OF  MAHASKA  v.  INGALLS,  Ex'r. 
16  Iowa  81.    (1864) 

This  action  was  brought  against  the  executor  of  John  H.  Shoe- 
maker, deceased,  and  the  sureties  on  his  official  bond  as  treasurer. 

The  cause  was,  by  consent,  referred  to  three  referees  "for  trial  of 
the  facts  involved  in  the  issues  (made)  by  the  pleadings." 

The  referees  in  their  report,  find,  that  from  the  commencement  of 
Shoemaker's  term  until  his  death,  he  was  a  defaulter  in  the  sum 
of  $3,415.44.     They  further  find  "that  there  was  a  default  on  the 


Declarations  Against  Deceased  281 

part  of  Shoemaker  on  or  about  the  20th  of  August,  1858,  in  the 
sum  of  $2,700.  That  we  have  no  means  of  determining  from  the 
evidence  when  the  remainder  of  the  defalcation  took  place,  whether 
between  the  20th  of  Augfust,  1858,  a(nd  the  execution  of  the  defend- 
ant's bond,  or  subsequent  to  the  execution  of  said  bond.  We  do  not 
know  affirmatively  that  there  was  any  defalcation  after  the  execu- 
tion of  defendant's  bond,  nor  do  we  find  negatively  that  there  was  not 
any." 

On  the  trial  before  the  referees,  plaintiff  raised  certain  questions 
relating  to  the  admission  of  testimony,  which  are  set  out  in  the  opin- 
ion; and  in  the  District  Court  made  these  the  basis  of  a  motion  to 
set  aside  the  report,  which  was  overruled  and  exceptions  taken  by  the 
plaintiff. 

On  the  report,  the  court  rendered  judgment  in  favor  of  the  plaintiff 
for  $715.44  (being  the  amount  of  the  whole  deficit  less  the  $2,700 
which  occurred  before  the  bond  in  suit  was  executed),  with  inter- 
est from  the  date  of  the  report.  From  this  judgment  both  parties 
appeal. 

Dillon,  J.  Against  the  plaintiff's  objection,  the  witness  was  per- 
mitted to  testify  as  follows: 

"Mr.  Shoemaker  told  me  that  there  was  over  $2,000  in  the  summer 
of  1858,  that  he  was  behind  as  treasurer  of  the  county,  and  he  wanted 
an  arrangement  made  by  which  I  should  pay  it.  I  agreed  to  fix  it  up, 
if  Moreland  would  secure  me.  I  afterward  saw  Moreland,  and  he 
agreed  to  do  so,  but  never  done  it,  and  the  arrangement  was  not  per- 
fected.   This  conversation  was  about  August  20,  1858." 

Against  the  plaintiff's  objection,  likewise,  one  Coolbaugh  was  per- 
mitted to  testify,  "That  the  said  John  H.  Shoemaker,  in  the  summer 
of  1858,  stated  in  the  presence  of  Coolbaugh  that  he,  the  said  Shoe- 
maker, was  then  behind  with  the  county  of  Mahaska,  in  the  sum  of 
about  $2,700." 

The  materiality  and  decisive  importance  of  this  testimony  are  ap- 
parent from  the  statement  of  the  case  above  given,  and  from  the 
report  of  the  referees  and  the  judgment  of  the  court  thereon;  and 
whether  this  cause  shall  be  affirmed  or  reversed,  depends  solely  upon 
the  admissibility  in  law  of  this  evidence. 

The  inquiry,  then,  as  to  the  state  of  Shoemaker's  accounts,  at  and 
before  the  time  the  bond  in  suit  was  executed,  was  one  of  indispens- 
able importance.  It  may  be  inferred  from  the  report  of  the  referees, 
that  his  official  books  and  papers  threw  no  light  on  this  subject. 

In  this  exigency,  the  sureties  offered  the  testimony  of  which  the 


282  Cases  on  Evidence 

plaintiff  now  complains.  This  testimony  consisted  of  the  verbal  ad- 
missions of  their  principal  on  two  separate  occasions,  and  to  two 
different  persons,  prior  to  the  execution  of  the  bond  in  suit,  that  he 
was  behind,  as  treasurer  of  the  county,  in  the  sum  of  about  $2,700. 
And  here  it  is  material  to  be  noted,  that  these  declarations,  or  more 
properly  speaking,  admissions,  are  distinctly  and  unequivocably 
stamped  with  the   following  marked   features : 

I  St.  They  were  made  against  the  pecuniary  interest  of  the  de- 
clarant, for  they  were  of  such  a  nature  so  circumstantial  and  precise, 
as  to  constitute  in  an  action  against  him  by  the  plaintiff,  the  founda- 
tion and  evidence  of  a  legal  liability  to  that  extent. 

2nd.  They  involved,  moreover,  the  admission  of  conduct  on  his 
part,  which  would  render  him,  if  known,  infamous  in  the  eyes  of 
the  public,  and  criminal  in  the  eyes  of  the  law;  for  the  penal  statutes 
of  the  State  declare,  that  every  officer  who  shall  unlawfully  "take, 
convert,  invest,  use,  loan,  or  fail  to  account  for,  any  portion  of  the 
public  money  entrusted  to  him,  shall  be  imprisoned  in  the  penitentiary, 
fined  in  a  sum  equal  to  the  amount  embezzled,  and  be  also  disqualified 
from  holding  any  office  under  the  laws  or  constitution  of  the  State. 
Rev.  sec.  4243. 

3rd.  They  were  not  only  made  ante  litem  motam,  but  were  made 
long  prior  to  the  execution  of  the  bond  in  suit,  and  consequently 
without  any  reference  to  the  controversy  which  has  since  arisen. 

4th.  The  declarant  was  dead  at  the  time  these  admissions  of  his 
were  offered  and  received  as  evidence  in  an  action  between  third 
parties,  viz.,  between  the  county  and  his  sureties. 

Such  were  the  circumstances  and  nature \  of  these  admissions,  and 
now  the  question  recurs :     Were  they  competent  and  legal  evidence  ? 

If  these  same  facts  had  appeared  by  written  entries  or  statements, 
the  deceased  party  being  in  a  position  to  know  the  facts,  and  the  facts 
being  undeniably  adverse  to  his  interest,  there  is  no  question  as  to 
their  being  receivable  in  evidence.  All  the  authorities  would  here 
agree. 

In  the  case  at  bar  the  declarations  were  verbal  and  the  question 
yet  remains  to  be  considered  whether  verbal  admissions  stand  upon 
the  same  footing  with  written  ones. 

Our  survey  and  examination  of  this  subject  may  be  thus  summed 
up.  This  species  of  evidence  being  somewhat  anomalous  in  its  char- 
acter, and  standing  on  the  ultima  thule  of  competent  testimony,  is 
not  highly  favored  by  the  courts,  and  the  tendency  is  rather  to  re- 
strict than  to  enlarge  the  right  to  receive  it,  or  at  least  to  require  the 


D^dvARATioNS  Against  Deceased  283 

evidence  to  be  brought  clearly  within  all  the  conditions  requisite  for 
its  reception.  From  the  unbroken  current  of  English  and  the  de- 
cided preponderance  of  American  authority,  we  think  the  present  state 
of  the  law  is,  that  verbal  declarations  are  receivable,  when  accom- 
panied by  the  following  prerequisites :  ist:  The  declarant  must  be 
dead,  to  this  we  believe  the  English  cases  make  no  exception.  Mere 
absence  from  the  jurisdiction  will  not  answer.     Brewster  v.  Doane, 

2  Hill  (N.  Y.)  537,  and  cases;  Moore  v.  Andrews,  5  Port.  Ala.  107. 
Although  by  the  course  of  decisions  in  some  of  the  states,  with  ref- 
erence to  written  entries,  etc.,  absence  might  be  possibly  treated  as 
equivalent  to  death.  See  i  Gteenl,  Ev.  sec,  163,  and  note;  8  Watts, 
'jy,  I  Smith,  L.  Cas.  340  (top)  ;  as  to  insanity.  Union  Bank  v.  Knapp, 

3  Pick.  96.  As,  in  the  case  at  bar,  the  declarant  was  deceased,  we 
need  not  decide  whether  death  is,  in  all  cases,  an  indispensable  con- 
dition. We  need  only  say  that  probably  the  courts  would  not  be  in- 
clined to  relax  the  rule  so  as  to  dispense  with  this  condition,  unless 
it  might  be  in  the  case  of  confirmed  insanity. 

2nd.  The  next  prerequisite  is,  that  the  declaration  must  have  been 
against  the  interest  of  the  declarant  at  the  time,  and  that  interest  must 
be  a  pecuniary  one.  That  it  would  have  subjected  the  party  to  penal 
consequences  is  not  sufficient,  although  this  would  add  to  the  weight 
of  the  testimony.  (Davis  v.  Lloyd,  i  C.  K.  275;  11  CI.  &  Fin.  85). 
The  conflict  of  the  declaration  with  the  pecuniary  interest  of  the  party 
must  be  clear  and  undoubted,  as  this  is  the  main  ground  upon  which 
the  admissibility  of  this  species  of  evidence  rests. 

3rd.  The  declaration  must  be  of  a  fact  or  facts  in  relation  to  a 
matter  concerning  which  the  declarant  was  immediately  and  per- 
sonally cognizable.  11  M.  &  W.  773.  As  the  evidence  is  admitted 
because  the  declaration  is  against  interest,  it  is  not  indispensable  that 
it  should  accompany  an  act,  but  if  not  so  accompanied,  it  very  greatly 
depreciates  its  value.  Phillipps  Ev.  vol.  i,  310;  i  Greenl.  Ev.  sec. 
147 ;  Ivat  V.  Finch,  i  Taunt.  141 ;  White  v.  Choteau,  i  E.  D.  Smith, 
493,  and  cases,  supra. 

4th.  In  addition,  the  court  should  under  the  circumstances  of  the 
particular  case,  be  satisfied  that  there  was  no  probable  motive  to 
falsify  the  fact  declared;  as  where  the  declaration  is  made  ante  litem 
motam,  or  at  a  period,  so  remote  as  to  preclude  all  suspicion  that  it 
was  manufactured  for  the  occasion.  Gilchrist  v.  Martin,  i  Bailey  Eq. 
492,  and  cases,  supra. 

When  all  of  these  conditions  are  met,  the  evidence  is  received  for 


284  Cases  on  Evidence 

what  it  is  worth,  and  its  weight  and  value  depend  upon  the  circum- 
stances of  the  particular  case. 

Judgment   affirmed. 


HUMES  V.  O'BRYAN  &  WASHINGTON. 
y4  Ala.  64.    (1883) 

This  action  was  brought  by  O'BryarT  &  Washington,  partners  doing 
business  in  the  city  of  Nashville,  Tennessee,  against  L.  R.  Glover  and 
Milton  Humes,  as  partners  doing  business  under  the  firm  name  of 
Glover  &  Humes;  and  Glover  having  died,  the  suit  was  prosecuted 
to  judgment  against  Humes  alone,  as  surviving  partner.  The  action 
was  commenced  on  the  22nd  September,  1873,  and  was  founded  on 
an  account  for  goods  sold  and  delivered  by  plaintiffs,  during  the  year 
1872,  to  said  Glover  &  Humes,  amounting  to  about  $750.  The  com- 
plaint contained  the  common  counts  only.  The  defendant  Humes 
pleaded  the  general  issue,  "in  short  by  consent,"  and  two  special 
pleas,  denying  his  liability  as  a  partner  in  the  alleged  firm  of  Glover 
&  Humes,  and  denying  that  the  account  was  contracted  by  him  or  by 
any  one  authorized  to  bind  him;  and  the  cause  was  tried  on  issue 
joined  on  these  several  pleas. 

Geo.  S.  Gordon,  whose  deposition  was  taken  by  the  defendant,  thus 
testified:  .  "I  heard  L.  R.  Glover  speak  in  reference  to  the  business 
relations  between  himself  and  the  defendant  (Humes).  He  stated, 
emphatically  and  repeatedly,  that  the  partnership  or  business  con- 
nection between  them  had  never  been  for  anything  but  planting  pur- 
poses only,  and  that  for  debts  contracted  by  him  (Glover)  Humes 
was  not  liable,  and  knew  nothing  about  them  when  they  were  con- 
tracted. He  further  said,  that  there  were  written  articles  of  agree- 
ment between  himself  and  Humes,  which  he  did  not  have,  and  the 
substance  of  which  he  could  not  recollect,  except  that  they  related 
solely  to  planting  and  the  planting  business,  and  never  at  any  time 
related  to  anything  else;  that  the  only  occasion  when  he  heard  their 
content  read,  was  when  they  were  read  in  Humes'  office  to  Ledbetter. 
Glover  further  disowned  any  knowledge  of  the  telegrams,  until  these 
suits  were  instituted."  The  witness  further  stated  that  these  dec- 
larations were  made  by  Glover  in  tht  office  of  Humes  &  Gordon,  no 
person  but  the  three  being  present,  and  that  they  were  made  with 


Declarations  Against  Deceased  285 

special  reference  to  the  liability  of  Humes  on  the  account  here  sued 
on.  The  plaintiffs  objected  to  the  interrogatories  calling  for  these 
declarations,  and  on  their  motion,  the  court  excluded  the  entire  depo- 
sition; to  which  ruling  the  defendant  excepted. 

SoMERViLLE,  J.  It  is  an  established  rule  of  evidence,  that  while,  in 
brdinary  cases,  the  mere  declarations  of  a  person  as  to  a  particular 
fact  are  not  evidence  of  that  fact,  being  regarded  as  hearsay;  yet 
declarations  made  by  a  person  which  are  at  variance  with  his  pecun- 
iary interest,  are  admissible  in  evidence  of  their  own  truth,  under 
certain  circumstances.  These  conditions  are,  that  the  declarant  pos- 
sessed competent  knowledge  of  the  facts  and  is  deceased  at  the  time 
his  declarations  are  proposed  to  be  proved.  The  absence  of  any 
motive  of  a  pecuniary  nature  which  would  tempt  him  to  falsehood, 
creates  a  strong  intrinsic  probability  of  the  truth  of  his  declaration; 
and  it  is,  therefore,  admitted  as  secondary  evidence,  after  the  death 
of  the  declarant,  being  the  best  which  the  nature  of  the  case  will, 
under  the  peculiar  circumstances,  permit,  i  Greenl.  Ev.  sec,  147; 
Starkies'  Ev.  (Shar.)  64;  Higham  v.  Ridgway,  2  Smith's  Lead.  Cases, 
183;  I  Whart.  Ev.  sec.  226  and  following.  The  weight  and  value  of 
such  evidence  depends,  of  course,  upon  many  considerations  of  a 
variable  character.    Raines  v.  Raines,  30  Ala.  425. 

We  are  of  the  opinion  that  the  declaration  of  Glover,  testified  to 
by  witness  Gordon  in  his  deposition,  comes  within  the  class  of  dec- 
larations against  interest,  under  the  principle  above  announced. 
Glover's  declaration  was,  that  the  appellant,  Humes,  was  never  his 
partner,  except  in  the  planting  business ;  and  this  statement  appears 
to  have  been  made  with  special  reference  to  the  pecuniary  liability  of 
the  parties  on  the  claim  which  is  the  basis  of  the  present  suit.  The 
death  of  Glover  was  proved,  and  it  was  shown  furthermore,  that 
there  were  no  assets  of  the  alleged  mercantile  partnership  of  Glover 
&  Humes,  the  reputed  firm,  as  such,  being  regarded  as  insolvent  at 
the  time  of  Glover's  declaration.  This  fact,  it  must  be  noticed,  is  of 
vital  importance  as  affecting  the  question  of  interest.  In  the  absence 
of  the  fact  of  insolvency,  it  is  manifest  that  the  converse  proposition 
— ^that  Humes  was  a  partner  of  the  declarant — would  be  a  declaration 
against  his  interest.  This  is  so  because,  if  true,  it  would  entitle. 
Humes  to  a  half  interest  in  the  partnership  assets  belonging  to  the 
alleged  firm  of  Glover  &  Humes.  The  assertion,  therefore,  that 
Humes  was  not  a  partner,  having  been  made  at  a  time  when  the 
partnership  business  had  failed,  it  was  a  declaration  exonerating  him 
from  a  pecuniary  liability   for  the  partnership   debts,  and,  if  true, 


286  Cases  on  Evidence 

to  this  extent  doubled  the  uhimate  amount  of  Glover's  liability,  by 
destroying  his  right  of  recourse  against  Humes  for  any  portion  of  the 
debts  due  by  the  reputed  firm,    2  Wharton  Ev.  sec.  1200. 

Reversed  and  remanded. 


MASSEE-FELTON  LUMBER  COMPANY  v.  SIRMANS. 
122  Ga.  2gy.    (1903) 

Cobb,  J.  Sirmans  applied  for  an  injunction  to  restrain  the  Massee- 
Felton  Lumber  Company  from  felling  the  timber  on  a  described  tract 
of  land.  The  judge  granted  the  injunction,  and  the  defendant  ex- 
cepted. 

The  right  of  the  plaintiff  to  an  injunction  depends  upon  whether 
he  has  shown  that  he  is  the  owner  of  the  land  and  that  the  threatened 
damage  would  be  irreparable. 

The  evidence  relied  upon  to  establish  the  existence  of  a  tax  execu- 
tion and  the  fact  of  a  levy  was  an  entry  made  by  the  sheriff  in  a 
private  memorandum  book  kept  by  him  during  his  lifetime,  \yhich 
was  found  among  his  papers  after  his  death  and  produced  at  the 
trial  as  coming  from  the  custody  of  his  family.  This  entry  was  in 
the  following  words:  "Georgia,  Berrien  County.  Record  of  sale  of 
land  for  1871  and  1872  and  1873.  Sold  on  the  first  Tuesday  in 
April,  1871,  lot  No.  313  in  the  loth  District  of  said  county  as  the 
property  of  T.  F.  Hampton,  to  satisfy  a  tax  fi.  fa.  issued  by  the  tax- 
collector  of  said  county;  said  land  was  knocked  off  to  John  C.  Sir- 
mans,  he  being  the  highest  and  best  bidder,  at  $10.50,  and  the  money 
applied  to  said  tax  fi.  fa.  Thomas  D.  Futch,  Sheriff,  B.  C." 

If  this  memorandum  was  admissible  in  evidence,  it  established  the 
existence  of  the  tax  execution  as  the  foundation  of  the  sale  which  is 
referred  to  in  the  sheriff's  deed.  If  this  entry  was  admissible  at  all, 
it  was  admissible  under  that  principle  of  the  law  which  admits  in 
evidence  declarations  of  a  person  since  deceased,  against  his  interest 
and  not  made  with  a  view  to  pending  litigation.  Civil  Code,  sec.  5 181. 
This  section  of  the  code  is  a  mere  codification  of  a  well-settled  prin- 
ciple in  the  law.  While  such  evidence  is  hearsay,  it  is  admitted  as 
one  of  the  exceptions  to  the  rule  against  hearsay  evidence,  on  the 
ground  of  the  extreme  improbability  of  its  falsity.  Field  v.  Boynton, 
33  Ga.  239;  Ellwell  V.  Mtg.  Co.,  loi  Ga.  496  (3) ;  Ga.  R.  Co.  v.  Fitz- 


Deci^arations  Against  Deceased  287 

gerald,  108  Ga.  509.  To  render  such  an  entry  or  declaration  admis- 
sible it  must  appear  that  the  declarant  is  dead,  that  he  possessed  com- 
petent knowledge  of  the  facts,  or  that  it  was  his  duty  to  know  them, 
and  that  the  declaration  was  at  variance  with  his  interest,  i  Gr. 
Ev.  (i6th  ed.)  sec.  147.  But  when  the  declaration  contains  that 
which  is  against  the  interest  of  the  declarant  and  also  that  which  is 
in  his  favor,  its  admissibility  has  been  doubted.  The  settled  rule 
seems,  however,  now  to  be  that  the  statements  in  the  declaration 
should  be  balanced,  and  if  those  in  favor  of  interest  are  equal  to  or 
preponderate  over  those  that  are  against  the  declaration  should  not 
be  admitted,  but  that  if  those  against  interest  preponderate  over  those 
that  are  in  favor  of  the  interest  the  declarations  are  admissible,  i  Gr. 
Ev.  (i6th  ed.)  sec.  157. 

But  in  any  case  where  the  declaration  is  admissible  It  is  admissible 
as  proof  of  all  the  facts  therein  stated,  both  the  main  fact  and  any 
collateral  fact  connected  therewith.*  The  leading  case  in  reference 
to  this  matter  is  Higham  v.  Ridgway,  10  East,  109,  in  which  an  entry 
of  services  rendered  as  a  man  midwife,  followed  by  the  entry,  "paid 
25th  Oct.  1768,"  was  admitted  to  show  the  date  of  the  child's  birth. 
See  also  i  Gr.  Ev.  (i6th  ed.)  sec,  152.  The  declaration  by  the  sher- 
iff that  he  had  sold  the  land  under  a  tax  execution  was  certainly 
a  declaration  against  his  interest,  because  by  an  admission  of  this 
fact  he  laid  himself  liable  to  all  the  consequences  which  would  result 
to  a  levying  officer  selling  the  property  of  another  when  he  had  no 
authority  to  make  such  sale.  In  the  entry  he  also  charged  himself 
with  the  amount  of  the  purchaser's  bid,  but  he  also  discharged  himself 
by  a  statement  that  he  applied  it  to  the  payment  of  the  tax.  Upon 
the  balancing  of  the  statements  set  forth  in  the  declaration  it  would 
seem  that  the  balance  preponderated  against  his  interest,  the  only 
statement  in  his  interest  being  that  he  had  appropriated  the  money  in 
the  way  the  law  required,  and  this  would  be  of  little  benefit  to  him  in 
the  event  he  was  sought  to  be  held  liable  on  account  of  want  of 
authority  to  make  the  sale,  or  for  any  irregularity  therein  for  which 
persons  interested  in  the  property  would  have  a  right  to  hold  him 
responsible.  We  think  that,  under  the  rule  stated,  this  entry  was  prop- 
erly admitted  in  evidence,  and  that  when  admitted  it  established  the 
existence  of  the  tax  execution. 

Judgment  affirmed.    All  the  Justices  concur. 


288  Cases  on  Evidence 

KEESLING  V.  POWELL. 
149  Ind.  372.    (1897) 

McCabe,  J.  The  appellee  sued  the  appellants,  treasurer,  auditor, 
and  commissioners  of  Cass  county,  to  enjoin  the  sale  of  a  certain 
described  lot  or  piece  of  real  estate  in  Logansport,  in  said  county, 
for  alleged  delinquent  taxes,  and  to  cancel  said  tax  as  the  same  stands 
charged  in  the  duplicate,  on  the  ground  that  the  same  had  been  paid. 
A  trial  of  the  issues  joined  resulted  in  a  finding  and  judgment  for  the 
plaintiflF,  over  defendant's  motion  for  a  new  trial. 

The  refusal  of  a  new  trial  is  questioned  by  the  assignment  of  errors, 
that  being  the  only  question  presented  by  the  appeal.  The  grounds 
of  the  motion  for  a  new  trial  are  that  the  finding  is  contrary  to  law 
and  the  evidence,  and  not  supported  by  sufficient  evidence,  and  error 
in  the  admission  of  certain  evidence. 

The  evidence,  the  admission  of  which  is  complained  of,  was  the 
testimony  of  the  plaintiff,  who,  being  about  to  purchase  the  lot  in 
question,  inquired  of  the  deputy  treasurer,  one  William  H.  Forest, 
whether  said  taxes  had  been  paid,  and  he  answered  that  they  had. 
This  evidence  of  the  mere  declaration  of  the  deputy  treasurer,  it  is 
claimed,  was  mere  hearsay,  and  not  admissible.  But  it  is  conceded 
that  at  the  time  of  the  admission  of  the  testimony  of  the  plaintiff, 
detailing  the  declaration  of  deputy  treasurer  Forrest,  that  the  de- 
clarant, Forrest,  was  dead.  It  is  also  objected  that  it  was  no  part  of 
the  duty  of  the  treasurer  to  tell  people  whether  taxes  were  paid  or 
not.  And  it  is  further  objected  that  the  public  cannot  be  estopped 
by  the  declaration  of  its  officials  respecting  the  public  revenues.  But 
it  is  a  mistake  to  suppose  that  the  object  of  the  testimony  was  to 
estop  anybody.  The  issue  on  trial  was  whether  the  tax  in  question 
had  been  paid.  There  was  no  attempt  to  defeat  the  collection  of  the 
tax  on  any  other  ground  than  that  it  had  been  actually  paid. 

The  evidence  shows  that  the  deceased  deputy  treasurer  whose 
declarations  were  put  in  evidence  had  the  requisite  means  of  know- 
ing whether  the  matter  declared  was  true.  It  also  appears  that  it 
would  be  against  the  interest  of  the  deputy  treasurer,  who  prac- 
tically performed  all  the  duties  of  the  county  treasurer,  to  admit 
or  declare  that  these  taxes  had  been  paid  if  they  in  fact  had  not. 
It  might  result  in  making  the  treasurer  liable  on  his  bond  for  the 
same,  and  the  deputy  liable  to  the  treasurer,  if  in  fact  they  had  been 
paid  to  the  deputy  treasurer.     In  Royse,  Exr,  v.  Leaning,  72  Ind.  at 


Declarations  Against  Deceased  289 

p.  184,  Woods,  J.,  speaking  for  the  court,  said:  "If  the  action  of  the 
court  in  admitting  this  testimony  can  be  upheld,  it  must  be  on  the 
ground  that  the  declarations  in  question  were  secondary  evidence, 
receivable  only  because  of  the  death  of  the  person  who  made  them. 
Upon  this  subject  the  following  language  is  found  in  i  Greenleaf 
Evidence,  section  147 :  'This  class  embraces  not  only  entries  in  books, 
but  all  other  declarations  or  statements  of  facts,  whether  verbal  or 
in  writing,  and  whether  they  were  made  at  the  time  of  the  fact  de- 
clared or  at  a  subsequent  day.  But,  to  render  them  admissible,  it 
must  appear  that  the  declarant  is  deceased ;  that  he  possessed  compe- 
tent knowledge  of  the  facts,  or  that  it  was  his  duty  to  know  them; 
and  that  the  declarations  were  at  variance  with  his  interest.  When 
these  circumstances  concur,  the  evidence  is  received,  leaving  its  weight 
and  value  to  be  determined  by  other  consideration.'  "  And  in  Dean  v. 
Wilkerson,  126  Ind.  at  p.  340,  Coffey,  J.,  speaking  for  the  court, 
said:  "It  is  to  be  observed  that  Thomas  Wilkerson  was  dead  and 
could  not  be  produced  in  court  as  a  witness  on  behalf  of  the  appellee. 
The  declarations  introduced  in  evidence  were  against  the  interests 
of  Thomas  Wilkerson,  and  related  to  a  fact  about  which  he  possessed 
competent  knowledge.  This  constitutes  one  of  the  exceptions  to  the 
general  rule  upon  the  subject  of  hearsay  evidence,  i  Greenleaf  Ev., 
section  147;  Royse,  Exr.  v.  Leaning,  72  Ind.  182. 

"Mr.  Greenleaf,  vol.  i,  section  148,  in  discussing  the  admissibility 
of  this  class  of  evidence,  says :  'The  ground  upon  which  this  evi- 
dence is  received,  is  the  extreme  improbability  of  its  falsehood.  The 
regard  which  men  usually  pay  to  their  own  interests  is  deemed  a 
sufficient  security,  both  that  the  declarations  were  not  made  under 
any  mistake  of  fact,  or  want  of  information  on  the  part  of  the  de- 
clarant, if  he  had  the  requisite  means  of  knowledge,  and  that  the 
matter  declared  is  true.' " 

Following  these  decisions,  as  we  do,  there  was  no  error  in  ad- 
mitting the  declarations  of  the  deceased  deputy  treasurer  in  evidence. 

The  Circuit  Court  did  not  err  in  overruling  the  appellant's  motion 
for  a  new  trial. 

Judgment  affirmed. 


290  Cases  on  Evidence 

HUMES  V.  O'BRYAN  &  WASHINGTON. 
74  Ala.  64.     (1883) 

This  action  was  brought  by  O'Bryan  &  Washington,  partners  doing 
business  in  the  city  of  Nashville.  Tennessee,  against  L.  R.  Glover  and 
Milton  Humes,  as  partners  doing  business  under  the  firm  name  of 
Glover  &  Humes;  and  Glover  having  died,  the  suit  was  prosecuted  to 
judgment  against  Humes  alone,  as  surviving  partner.  The  action 
was  commenced  on  the  22d  September,  1873,  and  was  founded  on  an 
account  for  goods  sold  and  delivered  by  plaintiffs,  during  the  year 
1872,  to  said  Glover  &  Humes,  amounting  to  about  $750.  The  com- 
plaint contained  the  common  counts  only.  The  defendant  Humes 
pleaded  the  general  issue,  "in  short  by  consent,"  and  two  special 
pleas,  denying  his  liability  as  a  partner  in  the  alleged  firm  of  Glover 
&  Humes,  and  denying  that  the  account  was  contracted  by  him,  or 
by  any  one  authorized  to  bind  him;  and  the  cause  was  tried  on  issue 
joined  on  these  several  pleas. 

Geo.  S.  Gordon,  whose  deposition  was  taken  by  the  defendant, 
thus  testified :  "I  heard  L.  R.  Glover  speak  in  reference  to  the  busi- 
ness relations  between  himself  and  the  defendant  (Humes).  He 
stated,  emphatically  and  repeatedly,  that  the  partnership  or  business 
connection  between  them  had  never  been  for  anything  but  planting 
purposes  only,  and  that  for  debts  contracted  by  him  (Glover)  Humes 
was  not  liable,  and  knew  nothing  about  them  when  they  were  con- 
tracted. He  further  said,  that  there  were  written  articles  of  agree- 
ment between  himself  and  Humes,  which  he  did  not  have,  and  the 
substance  of  which  he  could  not  recollect,  except  that  they  related 
solely  to  planting  and  the  planting  business,  and  never  at  any  time 
related  to  anything  else;  that  the  only  occasion  when  he  heard  their 
contents  read,  was  when  they  were  read  in  Humes'  office  to  Ledbetter. 
Glover  further  disowned  any  knowledge  of  the  telegrams,  until  these 
suits  were  instituted."  The  witness  further  stated,  that  these  dec- 
larations were  made  by  Glover  in  the  office  of  Humes  &  Gordon, 
no  person  but  the  three  being  present,  and  that  they  were  made  with 
special  reference  to  the  liability  of  Humes  on  the  account  here  sued 
on.  The  plaintiffs  objected  to  the  interrogatories  calling  for  these 
declarations,  and,  on  their  motion,  the  court  excluded  the  entire  depo- 
sition ;  to  which  ruling  the  defendant  excepted. 

SoMERViLLE,  J.  It  is  an  established  rule  of  evidence,  that  while, 
in  ordinary  cases,  the  mere  declarations  of  a  person  as  to  a  particu- 


Deci^arations  Against  Deceased  291 

lar  fact  are  not  evidence  of  that  fact,  being  regarded  as  hearsay;  yet 
declarations  made  by  a  person  which  are  at  variance  with  his  pecun- 
iary or  proprietary  interest,  are  admissible  in  evidence  of  their  own 
truth,  under  certain  circumstances.  These  conditions  are,  that  the 
declarant  possessed  competent  knowledge  of  the  facts,  and  is  de- 
ceased at  the  time  his  declarations  are  proposed  to  be  proved.  The 
absence  of  any  motive  of  a  pecuniary  nature,  which  would  tempt  him 
to  falsehood,  creates  a  strong  and  intrinsic  probability  of  the  truth 
of  his  declaration ;  and  it  is,  therefore,  admitted  as  a  secondary  evi- 
dence, after  the  death  of  the  declarant,  being  the  best  which  the 
nature  of  the  case  will,  under  the  peculiar  circumstances,  permit,  i 
Greenl.  Ev.  sec.  147;  Starkie's  Ev.  (Shar.)  64;  Higham  v.  Ridgway, 
2  Smith's  Lead.  Cases,  183 ;  i  Whart.  Ev.  sec.  226,  et  seq.  The  weight 
and  value  of  such  evidence  depends,  of  course,  upon  many  consid- 
erations of  a  variable  character.    Raines  v.  Raines,  30  Ala.  425. 

We  are  of  the  opinion  that  the  declaration  of  Glover,  testified  to 
by  the  witness  Gordon  in  his  deposition,  comes  within  the  class  of 
declarations  against  interest,  under  the  principle  above  announced. 
Glover's  declaration  was  that  the  appellant,  Humes,  was  never  his 
partner,  except  in  the  planting  business ;  and  this  statement  appears 
to  have  been  made  with  special  reference  to  the  pecuniary  liability 
of  the  parties  on  the  claim  which  is  the  basis  of  the  present  suit.  The 
death  of  Glover  was  proved,  and  it  was  shown,  furthermore,  that 
there  were  no  assets  of  the  alleged  mercantile  partnership  of  Glover 
&  Humes,  the  reputed  firm,  as  such,  being  regarded  as  insolvent  at 
the  time  of  Glover's  declaration.  This  fact,  it  must  be  noticed,  is  of 
vital  importance  as  affecting  the  question  of  interest.  In  the  absence 
of  the  fact  of  insolvency,  it  is  manifest  that  the  converse  proposi- 
tion— that  Humes  was  a  partner  of  the  declarant — would  be  a  dec- 
laration against  his  interest.  This  is  so  because,  if  true,  it  would  en- 
title Humes  to  a  half  interest  in  the  partnership  assets  belonging  to 
the  alleged  firm  of  Glover  &  Humes.  The  assertion,  therefore,  that 
Humes  was  not  a  partner,  having  been  made  at  a  time  when  the 
partnership  business  had  failed,  it  was  a  declaration  exonerating  him 
from  a  pecuniary  liability  for  the  partnership  debts,  and,  if  true,  to 
this  extent  doubled  the  ultimate  amount  of  Glover's  liability,  by 
destroying  his  right  of  recourse  against  Humes  for  any  portion  of 
the  debts  due  by  the  reputed  firm.    2  Whart.  Ev.  sec.  1200. 

Reversed  and  remanded. 


292  Cases  on  Evidence 

CURRIER  V.  GALE. 
80  Massachusetts  504.     (i860) 

Action  of  Tort  for  breaking  and  entering  a  close  in  Ambury.  An- 
swer, soil  and  freehold  in  the  defendant's  wife.  Trial  and  verdict 
for  the  plaintiff  in  the  Superior  Court  in  Essex  at  September  term, 
1859,  before  Morton,  J.,  who  reported  the  case  to  this  court,  under 
St.  1859,  c.  196,  sec.  32.    The  facts  are  stated  in  the  opinion. 

Dewey,  J.  It  is  conceded  that  Molly  Barnard  was  the  legal  owner 
of  the  premises  in  1799,  and  that  the  plaintiff  as  her  sole  heir  at 
law  holds  her  interest,  unless  it  has  been  acquired  by  some  third  party, 
by  conveyance  or  otherwise.  Such  transfer  of  title  was  attempted  to 
be  shown  by  a  mortgage  to  David  Currier,  and  a  levy  of  execution  in 
favor  of  Ebenezer  Moseley  against  said  Currier ;  but  that  title  was 
found  not  valid  by  the  jury,  under  proper  instructions  from  the  court, 
upon  which  no  question  is  now  open.  This  finding  of  the  jury  brings 
the  case  to  the  single  question  of  the  rejection  of  the  evidence  offered 
by  the  defendant  to  sustain  a  title  acquired  by  adverse  possession. 

The  title  by  adverse  possession  was  alleged  to  have  been  acquired 
by  Jacob  R.  Currier,  who  received  a  deed  from  Moseley,  the  judg- 
ment creditor  of  David  Currier,  on  the  4th  of  April,  1823,  after  his 
levy  of  execution.  The  defendant,  who  was  introduced  as  a  witness 
on  the  trial,  after  testifying  that  one  Webster  occupied  the  premises 
from  about  1825  for  a  period  of  twelve  or  fifteen  years,  was  asked 
"What  Webster  had  said  during  the  time  of  his  occupation,  in  regard 
to  his  occupancy,  for  the  purpose  of  showing  that  he  occupied  as 
tenant  to  Jacob  R.  Currier,  and  adversely  to  the  plaintiff."  A  similar 
inquiry  was  proposed  as  to  the  declaration  of  one  Bartlett,  who 
subsequently  occupied  the  premises,  and  for  the  like  purpose.  The 
court  rejected  the  evidence. 

The  defendant  insists  that  it  was  competent,  under  the  general 
rule  of  admitting  the  declarations  of  a  party  in  possession,  adverse 
to  his  own  interest.  Such  declarations  have  in  various  forms  and 
under  different  circumstances  been  deemed  admissible.  The  principle 
upon  which  they  are  held  admissible  is  not  very  clearly  settled. 
When  the  declaration  has  been  accompanied  with  an  act  pointing  out 
some  monument  or  existing  mark  of  boundary,  it  has  been  allowed. 
So  also  as  evidence  against  the  party  making  the  declaration,  and  all 
persons  in  privity  with  them,  or  claiming-  under  him,  it  is  competent. 
But  the  adjudicated  cases  go  somewhat  further,  and  hold  that  his 


Declarations  Against  Deceased  293 

declaration  in  disparagement  of  his  apparent  title,  as  indicated  by 
his  possession,  may  be  used  as  evidence  that  his  occupation  was  an 
occupation  under  another  person,  and  thus  make  his  possession  to 
avail  in  favor  of  the  person  stated  by  him  to  be  his  landlord.  Thus 
in  Peaceable  v.  Watson,  4  Taunt.  16,  it  was  held,  that  the  declarations 
of  a  deceased  occupant  of  land,  stating  under  whom  he  occupied  as 
tenant,  were  admissible — Mansfield,  C.  J.  saying:  "Possession  is 
prima  facie  evidence  of  seisin  in  fee  simple;  the  declaration  of  the 
possessor  that  he  is  tenant  to  another  makes  most  strongly  therefore 
against  his  own  interest,  and  consequently  is  admissible."  Davies  v. 
Pierce,  2  T.  R.  53,  is  an  authority  to  the  same  point.  The  case  of 
Marcy  y.  Stone,  8  Cush,  4,  is  directly  to  the  same  effect.  If  these 
declarations  were  offered  as  the  declarations  of  deceased  persons, 
while  occupying  the  premises,  they  would  have  been  therefore  admis- 
sible. 

On  the  other  hand,  if  they  were  offered  as  the  declarations  of  per- 
sons now  alive,  they  ought  to  be  rejected.  In  i  Phil.  Ev.  (4th  Amer. 
ed.)  304,  it  is  said  that  the  declaration  of  a  living  person,  however 
much  against  his  interest,  cannot  be  received  unless  in  case  of  a 
party  to  the  suit,  or  a  person  identified  in  interest.  In  Barrows  v. 
White,  4  B.  &  C.  328,  Littledale,  J.  says:  "It  is  a  general  rule  that, 
when  a  person  is  living  and  can  be  called  as  a  witness,  his  declara- 
tion made  at  another  time  cannot  be  received  as  evidence;  thus  the 
declarations  of  a  tenant  at  the  time  of  his  holding,  or  of  a  steward, 
cannot  be  admitted  unless  they  are  dead."'  The  case  of  Spargo  v. 
Brown,  9  B.  &  C.  935,  is  to  the  same  effect.  In  Phillips  v.  Cole,  10 
Ad.  &  El.  106,  it  was  said :  "The  declarations  of  third  persons  alive, 
in  the  absence  of  any  community  of  interest,  are  not  to  be  received 
to  effect  the  title  and  interest  of  other  persons  merely  because  they 
are  against  the  interest  of  those  who  make  them.  The  general  rule 
of  law,  that  the  living  witness  is  to  be  examined  on  oath,  is  not  sub- 
ject to  any  exception  so  wide." 

In  Daggett  v.  Shaw,  5  Met.  228,  Bartlett  v.  Emerson,  7  Gray,  174 
and  Ware  v.  Brookhouse,  7  Gray,  456,  the  rule  is  assumed  to  be 
that  the  admission  of  such  declarations  is  confined  to  the  declarations 
of  persons  who  were  deceased  at  the  time  of  the  trial. 

As  the  rejection  of  the  proposed  evidence  seems  to  have  been  upon 
the  general  ground  of  the  incompetency  of  all  declarations  of  tenants, 
and  not  restricted  to  the  declarations  of  living  persons,  the  court  are 
of  opinion  that  the  verdict  must  be  set  aside  and  a  new  trial  had. 


294  Cases  on  Evidence 

applying  the  nile  of  law  as  above  stated  to  the  declarations  of  any 
tenant,  that  may  be  offered  in  evidence. 

New  trial  ordered. 


DEAN  v.  WILKERSON. 
J26  Ind.  338.     (i8po) 


Coffey,  J.  This  was  an  action  by  the  appellee  against  the  appel- 
lant on  a  promissory  note  executed  by  the  appellant  to  the  appellee. 
The  defense  sought  to  be  established  in  the  Circuit  Court  was  that 
the  note  in  suit  was  executed  without  any  consideration. 

The  note  was  executed  in  renewal  of  two  other  notes  executed  by 
the  appellant  to  Thomas  Wilkerson,  the  father  of  the  appellee,  found 
in  the  possession  of  appellee,  but  not  endorsed  to  him. 

It  was  contended  by  the  appellant  in  the  Circuit  Court  that  the 
notes,  in  renewal  of  which  the  note  in  suit  was  executed,  were  the 
property  of  Thomas  Wilkerson,  and  for  that  reason  the  note  in  suit, 
having  been  made  payable  to  the  appellee,  was  without  any  consid- 
eration. 

On  the  other  hand  it  was  contended  by  the  appellee,  that  the  two 
notes  in  renewal  of  which  the  note  in  suit  was  executed  had  been 
given  to  him  by  Thomas  Wilkerson,  the  father,  in  a  distribution 
among  his  children  of  the  notes  held  by  the  father. 

The  evidence  as  to  whether  the  appellee  was  the  owner  of  the  two 
notes  above  mentioned  was  conflicting.  We  will  not  undertake  to 
weigh  the  evidence.  The  objection,  therefore,  that  the  verdict  of  the 
jury  is  not  supported  by  the  evidence  cannot  be  sustained. 

Finally,  it  is  contended  by  the  appellant  that  the  court  erred  in 
admitting  the  evidence  of  Alonzo  G.  Smith,  Lafayette  Wilkerson  and 
Charles  D.  Butler. 

The  evidence  of  these  witnesses  consisted  of  declarations  made 
by  Thomas  Wilkerson,  father  of  the  appellee,  who  departed  this 
life  before  the  trial  of  the  cause,  to  the  effect  that  he  had  made  a 
gift  to  the  appellee  of  the  notes,  in  consideration  of  which  the  note 
in  suit  was  executed. 

These  declarations  were  made  in  the  absence  of  the  appellant,  and 
as  Thomas  Wilkerson  was  not  a  party  to  the  suit  it  is  contended 


Declarations  Against  Deceased  295 

that  his  declarations  constituted  hearsay  evidence,  and  that  they  were 
not,  for  that  reason,  admissible. 

It  is  to  be  observed  that  Thomas  Wilkerson  was  dead  and  could 
not  be  produced  in  court  as  a  witness  on  behalf  of  the  appellee.  The 
declarations  introduced  in  evidence  were  against  the  interests  of 
Thomas  Wilkerson,  and  related  to  a  fact  about  which  he  possessed 
competent  knowledge.  This  constitutes  one  of  the  exceptions  to  the 
general  rule  upon  the  subject  of  hearsay  evidence,  i  Greenleaf  Ev., 
section  147 ;  Royse  v.  Leaming,  72  Ind.  182. 

Mr.  Greenleaf,  vol,  i.  section  148,  in  discussing  the  admissibility 
of  this  class  of  evidence,  says:  "The  ground  upon  which  this  evi- 
dence is  received,  is  the  extreme  improbability  of  its  falsehood.  The 
regard  which  men  usually  pay  to  their  own  interest  is  deemed  a 
sufficient  security,  both  that  the  declarations  were  not  made  under 
any  mistake  of  fact,  or  want  of  information  on  the  part  of  the 
declarant,  if  he  had  the  requisite  means  of  knowledge,  and  that  the 
matter  declared  is  true." 

We  cannot  presume  that  Thomas  Wilkerson  did  not  possess  knowl- 
edge as  to  whether  he  made  a  gift  to  his  son,  James,  of  the  notes, 
constituting  the  consideration  of  the  note  in  suit ;  nor  can  we  presume 
he  would  declare  he  had  parted  with  his  title  unless  such  declaration 
was  true.  In  our  opinion  the  court  did  not  err  in  admitting  his  evi- 
dence. 

There  is  no  error  in  the  record  for  which  the  judgment  should  be 
reversed. 

Judgment  affirmed. 


CURRIER  v.  GALE. 
80  Mass.  504.     (i860) 


Action  of  tort  for  breaking  and  entering  a  close  in  Amesbury.  An- 
swer soil  and  freehold  in  the  defendant's  wife.  Trial  and  verdict 
for  the  plaintiff  in  the  Superior  Court  in  Essex  at  September  term, 
1859,  before  Morton,  J.,  who  reported  the  case  to  this  court,  under 
St.  1859,  c.  196,  sec.  32.    The  facts  are  stated  in  the  opinion. 

Dewey,  J.  It  is  conceded  that  Molly  Barnard  was  the  legal  owner 
of  the  premises  in  1799,  and  that  the  plaintiff  as  her  sole  heir  at  law 
holds  her  interest,  unless  it  has  been  acquired  by  some  third  party, 


296  Cases  on  Evidence 

by  conveyance  or  otherwise.  Such  transfer  of  title  was  attempted 
to  be  shown  by  a  mortgage  to  David  Currier ;  but  that  title  was  found 
not  valid  by  the  jury,  under  proper  instructions  from  the  court,  upon 
which  no  question  is  now  open.  This  finding  of  the  jury  brings  the 
case  to  the  single  question  of  the  rejection  of  the  evidence  offered 
by  the  defendant  to  sustain  a  title  acquired  by  adverse  possession. 

The  title  by  adverse  possession  was  alleged  to  have  been  acquired 
by  Jacob  R.  Currier,  who  received  a  deed  from  ^^losely,  the  judgment 
creditor  of  David  Currier,  on  the  4th  of  April,  1823,  after  his  levy 
of  execution.  The  defendant,  who  was  introduced  as  a  witness  on 
the  trial,  after  testifying  that  one  Webster  occupied  the  premises 
from  about  1825  for  a  period  of  twelve  or  fifteen  years,  was  asked 
"what  Webster  had  said  during  the  time  of  his  occupation  in  regard 
to  his  occupancy  for  the  purpose  of  showing  that  he  occupied  as  ten- 
ant to  Jacob  R.  Currier,  and  adversely  to  the  plaintiflF."  A  similar 
inquiry  was  proposed  as  to  the  declarations  of  one  Bartlett,  who  sub- 
sequently occupied  the  premises,  and  for  the  like  purpose.  The  court 
rejected  the  evidence. 

The  defendant  insists  that  it  was  competent,  under  the  general 
rule  of  admitting  the  declarations  of  a  party  in  possession,  adverse 
to  his  own  interest.  Such  declarations  have  in  various  forms  and 
under  diflFerent  circumstances  been  deemed  admissible.  The  principle 
upon  which  they  are  held  admissible  is  not  very  clearly  settled.  When 
the  declaration  has  been  accompanied  with  an  act  pointing  out  some 
monument  or  existing  mark  of  boundary  it  has  been  allowed.  So  also 
as  evidence  against  the  party  making  the  declaration,  and  all  persons 
in  privity  with  him,  or  claiming  under  him,  it  ik  competent.  But  the 
adjudicated  cases  go  somewhat  further,  and  hold  that  his  declaration 
in  disparagement  of  his  apparent  title,  as  indicated  by  his  possession, 
may  be  used  as  evidence  that  his  occupation  was  an  occupation  under 
another  person,  and  thus  make  his  possession  to  avail  in  favor  of  the 
person  stated  by  him  to  be  his  landlord.  Thus  in  Peaceable  v.  Wat- 
son, 4  Taunton  16,  it  was  held,  that  the  declarations  of  a  deceased 
occupant  of  land  stating  under  whom  he  occupied  as  tenant,  were 
admissible — Mansfield,  C.  J.,  saying:  "Possession  is  prima  facie  evi- 
dence of  seisin  in  fee  simple;  the  declaration  of  the  possessor  that 
he  is  tenant  to  another  makes  most  strongly  therefore  against  his  own 
interest,  and  consequently  is  admissible."  Davies  v.  Pierce,  2  T.  R. 
53,  is  an  authority  to  the  same  point.  The  case  of  Marcy  v.  Stone, 
8  Cush.  4,  is  directly  to  the  same  effect.     If  these  declarations  were 


Declarations  Against  Deceased  297 

offered  as  the  declarations  of  deceased  persons,  while  occupying  the 
premises,  they  would  have  been  therefore  admissible. 

On  the  other  hand,  if  they  were  offered  as  the  declarations  of  persons 
now  alive,  they  ought  to  be  rejected.  In  L.  Phil.  Ev.  (4th  Amer.  ed.) 
304  it  is  said  that  the  declaration  of  a  living  person,  however  much 
against  his  interest,  cannot  be  received  unless  in  the  case  of  a  party 
to  the  suit,  or  a  person  identified  in  interest.  In  Barrows  v.  White, 
4  B.  &  C.  328,  Littledale,  J.,  says :  "It  is  a  general  rule  that,  when  a 
person  is  living  and  can  be  called  as  a  witness,  his  declaration  made 
at  another  time  cannot  be  received  as  evidence;  thus  the  declarations 
of  a  tenant  at  the  time  of  his  holding  or  of  a  steward,  cannot  be  ad- 
mitted unless  they  are  dead."  The  case  of  Spargo  v.  Brown,  9  B.  & 
C-  935,  is  to  the  same  effect.  In  Phillips  v.  Cole,  10  Ad.  &  El.  106, 
it  was  said :  "The  declarations  of  third  persons  alive,  in  the  absence 
of  any  community  of  interest,  are  not  to  be  received  to  affect  the  title 
and  interest  of  other  persons  merely  because  they  are  against  the 
interest  of  those  who  make  them.  The  general  rule  of  law,  that  the 
living  witness  is  to  be  examined  on  oath,  is  not  subject  to  any  excep- 
tion so  wide." 

In  Daggett  v.  Shaw,  5  Met.  228,  Bartlett  v.  Emerson,  7  Gray,  174 
and  Ware  v.  Brookhouse,  7  Gray,  456,  the  rule  is  assumed  to  be  that 
the  admission  of  such  declarations  is  confined  to  the  declarations  of 
persons  who  were  deceased  at  the  time  of  the  trial. 

As  the  rejection  of  the  proposed  evidence  seems  to  have  been 
upon  the  general  ground  of  the  incompetency  of  all  declarations  of 
tenants,  and  not  restricted  to  the  declarations  of  living  persons,  the 
court  are  of  opinion- that  the  verdict  must  be  set  aside,  and  a  new  trial 
had,  applying  the  rule  of  law  as  above  stated  to  the  declarations  of 
any  tenant,  that  may  be  offered  in  evidence. 

New  trial  ordered. 


THE  COUNTY  OF  MAHASKA  v.  INGALLS. 
16  Iowa  81.     (1864) 

This  action  was  brought  against  the  executor  of  John  H.  Shoe- 
make,  deceased,  and  the  sureties  on  his  official  bond  as  treasurer. 

The  cause  was,  by  consent,  referred  to  three  referees  "for  trial  of 
the  facts  involved  in  the  issues  (made)  by  the  pleadings." 


298  Cases  on  Evidence 

The  referees  in  their  report,  find,  that  from  the  commencement  of 
Shoemake's  term  until  his  death,  he  was  a  defaulter  in  the  sum  of 
$3,415.44.  They  further  find  "that  there  was  a  default  on  the  part 
of  Shoemake  on  or  about  the  20th  of  August,  1858,  in  the  sum  of 
$2,700.  That  we  have  no  means  of  determining  from  the  evidence 
when  the  remainder  of  the  defalcation  took  place,  whether  between 
the  20th  of  August,  1858,  and  the  execution  of  said  bond,  nor  whether 
the  money  constituting  the  said  defalcation  or  any  part  thereof  was 
in  the  hands  of  Shoemake  at  the  time  of  the  execution  of  said  bond. 

We  do  not  know  affirmatively  that  there  was  any  defalcation  after 
the  execution  of  defendants'  bond,  nor  do  we  find  negatively  that 
there  was  not  any." 

On  the  trial  before  the  referees,  plaintiff  raised  certain  questions 
relating  to  the  admission  of  testimpny,  which  are  set  out  in  the  opin- 
ion; and  in  the  District  Court  made  these  the  basis  of  a  motion  to  set 
aside  the  report,  which  was  overruled  and  exceptions  taken  by  the 
plaintiflF. 

On  the  report,  the  court  rendered  judgment  in  favor  of  the  plain- 
tiff for  $715.44  (being  the  amount  of  the  whole  deficit  less  the  $2,700 
which  occurred  before  the  bond  in  suit  was  executed),  with  interest 
from  the  date  of  the  report.    From  this  judgment  both  parties  appeal. 

DiLLiON^  J.  Against  the  plaintiff's  objection,  the  witness  was  per- 
mitted to  testify  as  follows:  "Mr.  Shoemake  told  me  that  there  was 
over  $2,000  in  the  summer  of  1858,  that  he  was  behind  as  treasurer 
of  the  county,  and  he  wanted  an  arrangement  made  by  which  I  should 
pay  it.     I  agreed  to  fix  it  up,  if  Moreland  would  secure  me. 

I  afterward  saw  Moreland,  and  he  agreed  to  do  so,  but  never  done 
it,  and  the  arrangement  was  not  perfected.  This  conversation  was 
about  August  20th,  1858." 

Against  the  plaintiff's  objection,  likewise,  one  Coolbaugh  was  per- 
mitted to  testify,  "That  the  said  John  H.  Shoemake,  in  the  summer 
of  1858,  stated  in  the  presence  of  Coolbaugh  that  he,  the  said  Shoe- 
make,  was  then  behind  with  the  county  of  Mahaska,  in  the  sum  of 
about  $2,700." 

The  materiality  and  decisive  importance  of  this  testimony  are  ap- 
parent from  the  statement  of  the  case  above  given,  and  from  the 
report  of  the  referees,  and  the  judgment  of  the  court  thereon;  and 
whether  this  cause  shall  be  affirmed  or  reversed,  depends  solely  upon 
the  admissibility  in  law  of  this  evidence. 

The  inquiry,  then,  as  to  the  state  of  Shoemake's  accounts,  at  and 
before  the  time  the  bond  in  suit  was  executed,  was  one  of  indispens- 


Declarations  Against  Deceased  299 

able  importance.  It  may  be  inferred  from  the  report  of  the  referees, 
that  his  official  books  and  papers  threw  no  light  upon  this  subject.  In 
this  exigency,  the  sureties  offered  the  testimony  of  which  the  plaintiff 
now  complains.  This  testimony  consisted  of  the  'verbal  admissions 
of  their  principal  on  two  separate  occasions,  and  to  two  different 
persons,  prior  to  the  execution  of  the  bond  in  suit,  that  he  was  behind, 
as  treasurer  of  the  county,  in  the  sum  of  about  $2,700.  And  here 
it  is  material  to  be  noted,  that  these  declarations,  or  more  properly 
speaking,  admissions,  are  distinctly  and  unequivocally  stamped  with 
the  following  marked  features : 

1st.  They  were  made  against  the  pecuniary  interest  of  the  de- 
clarant, for  they  were  of  such  a  nature,  so  circumstantial  and  precise, 
as  to  constitute  in  an  action  against  him  by  the  plaintiff,  the  foundation 
and  evidence  of  a  legal  liability  to  that  extent. 

2d.  They  involved,  moreover,  the  admission  of  conduct  on  his  part, 
which  would  render  him,  if  known,  infamous  in  the  eyes  of  the  public, 
and  criminal  in  the  eyes  of  the  law;  for  the  penal  statutes  of  the 
State  declare,  that  every  officer  who  shall  unlawfully  "take,  convert, 
invest,  use,  loan,  or  fail  to  account  for,  any  portion  of  the  public 
money  entrusted  to  him,  shall  be  imprisoned  in  the  penitentiary,  fined 
in  a  sum  equal  to  the  amount  embezzled,  and  be  also  disqualified  from 
holding  any  office  under  the  laws  or  constitution  of  the  State."    Rev. 

4243. 

3d.  They  were  not  only  made  ante  litem  motam,  but  were  made 
long  prior  to  the  execution  of  the  bond  in  suit,  and  consequently  with- 
out any  reference  to  the  controversy  which  has  since  arisen. 

4th.  The  declarant  was  dead  at  the  time  these  admissions  of  his 
were  offered  and  received  as  evidence  in  an  action  between  third 
parties,  viz.,  between  the  county  and  his  sureties. 

Such  were  the  circumstances  and  nature  of  these  admissions,  and 
now  the  question  recurs :     Were  they  competent  and  legal  evidence  ? 

If  these  same  facts  had  appeared  by  written  entries  or  statements, 
the  deceased  party  being  in  a  position  to  know  the  facts,  and  the 
facts  being  undeniably  adverse  to  his  interest,  there  is  no  question  as 
to  their  being  receivable  in  evidence.  All  the  authorities  would  here 
agree. 

In  the  case  at  bar  the  declarations  were  verbal  and  the  question  yet 
remains  to  be  considered  whether  verbal  admissions  stand  upon  the 
same  footing  as  written  ones. 

Our  examination  and  survey  of  this  subject  may  be  thus  summed 
up.    This  species  of  evidence  being  somewhat  anomalous  in  its  char- 


300  Cases  on  Evidence 

acter,  and  standing  on  the  ultima  thtile  of  competent  testimony,  is  not 
highly  favored  by  the  courts,  and  the  tendency  is  rather  to  restrict 
than  to  enlarge  the  right  to  receive  it,  or  at  least  to  require  the  evi- 
dence to  be  brought  clearly  within  all  the  conditions  requisite  for 
its  reception.  From  the  unbroken  current  of  English  and  the  decided 
preponderance  of  American  authority,  we  think  the  present  state  of 
the  law  is,  that  verbal  declarations  are  receivable,  when  accompanied 
by  the  following  prerequisites :  ist.  The  declarant  must  be  dead. 
To  this  we  believe  the  English  cases  make  no  exception.  More 
absence  from  the  jurisdiction  will  not  answer.     Brewster  v.  Doane, 

2  Hill  (N.  N.),  537,  and  cases;  Moore  v.  Andrews,  5  Port.  Ala.  107. 
Although  by  the  course  of  decisions  in  some  of  the  States,  with 

reference  to  written  entries,  etc..  absence  might  possibly  be  treated 
as  equivalent  to  death.  See  i  Greenl.  Ev.,  163,  and  note;  8  Watts. 
yy;  i  Smith,  L.  Cas.,  340  (top)  ;  as  to  insanity,  Union  Bank  v.  Knapp, 

3  Pick.  96.  As,  in  the  case  at  bar,  the  declarant  was  deceased,  we 
need  not  decide  whether  death  is,  in  all  cases,  an  indispensable  con- 
dition. We  need  only  say,  that  probably  the  courts  would  not  be  in- 
clined to  relax  the  rule  so  as  to  dispense  with  this  condition,  unless  it 
might  be  in  the  case  of  confirmed  insanity. 

2d.  The  next  prerequisite  is,  that  the  declaration  must  have  been 
against  the  interest  of  the  declarant  at  the  time,  and  that  interest  must 
be  a  pecuniary  one.  That  it  would  have  subjected  the  party  to  penal 
consequences  is  not  sufficient,  although  this  would  add  to  the  weight 
of  the  testimony.  (Davis  v.  Lloyd,  i  C.  &  K.  275;  11  CI.  &  Fin.  85.) 
The  conflict  of  the  declaration  with  the  pecuniary  interest  of  the 
party  must  be  clear  and  undoubted,  as  this  is  the  main  ground  upon 
which  the  admissibility  of  this  species  of  evidence  rests. 

3d.  The  declaration  must  be  a  fact  or  facts  in  relation  to  a  matter 
concerning  which  the  declarant  was  immediately  and  personally  cog- 
nizable. II  M.  &  W.  773.  As  the  evidence  is  admitted  because  the 
declaration  is  against  interest,  it  is  not  indispensable  that  it  should 
accompany  an  act,  but  if  not  so  accompanied  it  very  greatly  depre- 
ciates its  value.  Phillipps  Ev.,  vol.  i,  p.  310;  i  Greenl.  Ev.,  147; 
Ivat  V.  Finch,  i  Taunt.  141 ;  White  v.  Choteau,  i  E.  D.  Smith,  493, 
and  cases,  supra. 

4th.  In  addition,  the  court  should,  under  the  circumstances  of  the 
particular  case,  be  satisfied  that  there  was  no  probable  motive  to 
falsify  the  fact  declared;  as  where  the  declaration  is  made  ante  litem 
motam,  or  at  a  period  so  remote  as  to  preclude  all  suspicion  that  it 


PuBi^ic  AND  General  Interests  301 

was  manufactured   for  the  occasion.     Gilchrist  v.  Martin,   i   Bailey 
Eq.,  492,  and  cases,  supra. 

When  all  of  these  conditions  are  met,  the  evidence  is  received  for 
what  it  is  worth,  and  its  weight  and  value  depend  upon  the  circum- 
stances of  the  particular  case. 

Judgment  affirmed. 


DECLAKATIONS  EELATING  TO  PUBLIC  AND  GENERAL  INTEEESTS.i 

ENFIELD  V.  WOODS. 
212  Mass.  547.     (1912) 

Bill  in  Equity,  filed  in  the  Superior  Court  on  June  9,  1908,  by  the 
town  of  Enfield  against  Caroline  D.  Woods,  the  sole  devisee  under 
the  will  of  her  late  husband  Cyrus  F.  Woods,  to  enjoin  the  defendant 
from  removing  a  soldiers'  monument  from  a  parcel  of  land  of  about 
three  quarters  of  an  acre  known  as  the  "Common"  alleged  to  belong 
to  the  plaintiff  and  to  have  been  acquired  by  an  open,  adverse  and 
uninterrupted  possession  and  use  and  occupation  by  the  plaintiff  of 
more  than  ninety  years. 

The  answer  alleged  ownership  of  the  land  by  the  defendant. 

LoRiNG,  T.  This  case  is  before  us  on  an  appeal  from  a  decree  in 
favor  of  the  plaintiff  after  all  but  one  of  the  defendant's  exceptions 
to  the  master's  report  had  been  overruled,  and  after  a  plea  to  the 
jurisdiction  also  had  been  overruled. 

The  bill  is  brought  by  the  town  of  Enfield  as  owner  of  the  fee  in  a 
lot  of  land  known  as  the  "Common,"  to  enjoin  the  defendant  (who 
claimed  to  own  the  land)  from  removing  from  it  a  soldier's  monu- 
ment erected  pursuant  to  a  vote  of  the  town. 

The  exception  sustained  by  the  Superior  Court. was  to  the  finding 
of  the  master  "that  the  town  did  acquire  by  parol  gift  title  to  said 
'Common'  including  the  land  in  dispute,  and  at  a  time  before  the  year 
1814." 

The  next  question  or  questions  submitted  to  the  court  by  the  master 
concern  the  admission  of  the  testimony  of  one  Bestor  and  one  Har- 
wood.    Bestor  was  allowed  to  testify  against  the  defendant's  objection 


1  Hughes  on  Evidence,  p.  78. 


302  Cases  on  Evidence 

that  he  was  seventy-eight  years  old  and  had  Hved  in  Enfield  all  his 
life;  that  his  grandmother,  one  of  the  old  settlers  of  the  town,  came 
there  in  1802  and  died  in  1857;  and  that  "he  had  heard  his  grand- 
mother and  the  rest  of  the  old  people  talk  about  it  and  say  that 
Robert  Field  gave  the  common  and  burying  ground  to  the  town  of 
Greenwich."  Harwood  was  allowed  to  testify  that  his  father,  who 
died  in  1908  at  the  age  of  seventy-eight,  told  him  "that  his  (the  wit- 
ness's grandfather  said  that  Robert  Field  gave  this  piece  of  land  to 
the  South  Parish  of  Greenwich  for  a  common." 

We  assume  on  the  report  that  there  was  no  evidence  that  the  dec- 
larations made  by  Harwood's  grandfather  and  those  made  by  Bestor's 
grandmother  and  "the  rest  of  the  old  people"  (referred  to  in  his  tes- 
timony) were  made  "upon  the  personal  knowledge  of  the  declarants." 
For  that  reason  the  testimony  cannot  be  taken  to  have  been  admitted 
under  R.  L.  c.  175,  sec.  66. 

These  declarations,  being  declarations  upon  a  matter  of  general 
if  not  of  public  interest,  are  within  one  of  the  exceptions  to  the  rule 
excluding  hearsay  evidence  so  far  as  the  subject  matter  of  them  is 
concerned;  as  to  this  see  Hall  v.  Mayo,  97  Mass.  416,  418;  Boston 
Water  Power  Co.  v.  Hanlon,  132  Mass.  483,  484. 

It  is  generally  laid  down  that  evidence  to  be  admissible  under  this 
exception  to  the  rule  against  hearsay  must  be  evidence  of  a  general 
or  common  reputation  as  to  the  existence  or  non-existence  of  the  mat- 
ter of  public  or  general  interest.  See  for  example  Starkie  on  Evidence 
(loth  Am.  ed.)  47-49;  i  Phillips  on  Evidence  (6th  ed.)  236;  i  Green- 
leaf  on  Evidence  (5th  ed.)  sec.  128;  Wigmore  on  Evidence,  sees. 
1584-5.  The  statement  of  the  rule  heretofore  made  in  our  decisions 
might  raise  the  question  whether  reputation  evidence  in  this  connec- 
tion means  anything  more  than  evidence  which  is  reputed  to  be  the 
fact  as  distinguished  from  evidence  which  is  known  by  the  declarant 
to  be  the  fact  and  so  to  include  the  individual  assertion  of  a  deceased 
person  not  made  on  personal  knowledge.  See  Gray,  J.,  in  Hall  v. 
Mayo,  ubi  supra,  and  Devens,  J,,  in  Boston  Water  Po^ver  Co,  v.  Han- 
lon, ubi  supra. 

We  do  not  find  it  necessary  to  pass  upon  that  question  here.  For 
if  this  exception  is  limited  to  cases  where  there  was  a  general  or 
common  reputation,  we  are  of  opinion  that  it  would  be  going  too  far 
to  limit  the  exception  to  cases  where  the  declarant  stated  that  there 
was  a  general  reputation.  Since  it  is  not  possible  to  detetmine  by  a 
preliminary   examination   whether  there  was  or   was   not  a  general 


PuBuc  AND  General  Interests  30^ 

reputation,  we  are  of  opinion  that  testimony  by  a  witness  that  he  had 
heard  the  fact  "from  old  persons"  now  deceased  is  competent  evidence 
of  a  general  or  common  reputation.  Bestor's  testimony  therefore  was 
competent  so  far  as  this  matter  is  concerned.  And  see  Wigmore  on 
Evidence,  sec.  1584.  If  it  is  competent  to  prove  a  general  or  com- 
mon reputation  by  the  declaration  of  one  person  that  he  had  heard 
the  fact  from  old  persons  now  deceased,  it  is  equally  competent  tc 
prove  a  general  or  common  reputation  by  putting  in  evidence  the  dec- 
larations of  many  persons  where  each  declarant  heard  of  the  fact 
from  one  person  only.  Where  all  the  residents  of  the  place  in  ques- 
tion are  severally  shown  to  have  made  the  statement,  a  general  or  com- 
mon reputation  is  made  out  in  proof.  In  like  manner  a  general  or 
common  reputation  where  many  although  not  all  are  shown  to  have 
made  individual  assertions  of  the  fact.  We  are  therefore  of  opinion 
that  Harwood's  testimony,  in  connection  with  Bestor's  was  admis- 
sible so  far  as  this  consideration  is  concerned. 

It  has  been  said  that  evidence,  to  be  admissible  under  this  exception 
to  the  rule  against  hearsay,  must  be  evidence  of  the  general  right  and 
not  of  particular  facts.  Starkie  on  Evidence  (10  Am.  ed.)  49.  i 
Phillips  on  Evidence  (6th  ed.)  638.  The  Queen  v.  Bliss,  7  A.  E.  550. 
But  as  it  is  pointed  out  in  Wigmore  on  Evidence,  sec.  1585,  the  more 
correct  statement  of  this  limitation  of  the  exception  here  in  question 
is  that  the  declarations  to  be  admissible  must  be  declarations  of  the 
public  or  general  right  and  not  of  the  particular  exercise  of  it.  It  is 
no  objection  to  Bestor's  and  Harwood's  testimony  that  the  declara- 
tions testified  to  by  them  dealt  with  the  particular  fact  that  the  com- 
mon right  began  in  a  parol  gift  made  by  Robert  Field,  for  whom  the 
plaintiff  town  was  named. 

Decree  affirmed. 


SOUTH-WEST  SCHOOL  DISTRICT  v.  WILLIAMS. 

48  Conn.  505.     (j88i) 

Civil  action  to  recover  for  an  entry  into  and  injury  to  a  school- 
house  belonging  to  the  plaintiffs;  brought  originally  before  a  jastice 
of  the  peace  and  by  appeal  to  the  Superior  Court  in  Tolland  county, 
and  there  tried  to  the  jury  before  Harvey,  J.  Verdict  for  the  plain- 
tiffs and  motion  for  a  new  trial  by  the  defendants. 


304  Cases  on  Evidence 

LooMis^  J.  The  complaint  alleges  a  malicious  injury  by  the  de- 
fendants to  the  school-house  and  furniture  therein  belonging  to  the 
plaintiffs.  The  defendants'  answer  denies  the  ownership  of  the  plain- 
tiffs, and  alleges  that  the  school-house  belonged  to  Ruth  A.  Williams 
one  of  the  defendants. 

The  counsel  for  the  defendants  called  upon  Ruth  A.  Williams,  one 
of  the  defendants,  as  a  witness,  and  for  the  purpose  of  proving  the 
time  when  the  school-house  was  erected  by  the  plaintiffs,  asked  her — 
"Did  your  mother  or  great-grandmother  tell  you  when  the  school- 
house  was  built — ^before  or  after  the  death  of  Joseph  Webster?" — 
which,  upon  the  plaintiffs'  objection,  was  excluded  by  the  court. 

The  pbjection  was  not  to  the  fact — which  is  conceded  to  have  been 
material — ^but  only  to  the  mode  of  proving  it,  namely,  by  the  declara- 
tions of  the  witness's  mother  and  great-grandmother. 

In  support  of  the  claim  that  the  evidence  was  admissible  the  de- 
fendants invoke  the  benefit  of  an  exception  to  the  general  rule  exclud- 
ing hearsay  evidence  upon  the  ground  that  the  matter  in  question  was 
of  public  and  general  interest. 

As  included  within  this  exception  the  authorities  mention  boundaries 
of  counties,  towns  and  other  territorial  divisions,  rights  of  common, 
claims  of  highways  and  ferries,  and  in  this  and  some  other  states  the 
boundaries  of  lands  of  individuals.  But  no  such  fact  as  the  one  now 
in  question  has  ever  been  mentioned  as  proper  to  be  included  in  this 
class. 

The  fallacy  on  the  part  of  the  defendants  seems  to  be  in  assuming 
that  because  a  school-house  is  a  public  building  for  a  public  purpose, 
the  precise  date  of  its  erection  must  also  be  matter  of  public  or  gen- 
eral interest  to  be  proved  by  traditionary  evidence;  and  therefore  one 
of  the  defendants  attempts,  by  repeating  the  unsworn  statement  of 
her  deceased  mother  or  grandmother  as  to  a  date,  to  change  this 
public  matter  of  a  school-house  into  her  own  private  property. 

And  this  well  illustrates  the  danger  of  extending  the  exception  so 
as  to  embrace  particular  facts  and  dates.  In  this  case  there  was  doubt- 
less other  and  better  evidence  to  be  found  in  the  records  of  the  school 
district  or  from  living  witnesses.  But  however  this  may  have  been,  a 
reference  to  the  reason  for  admitting  traditionary  evidence  in  public 
matters  will  show  that  particular  dates  like  this  ought  not  to  be  in- 
cluded. The  law  does  not  dispense  with  the  sanction  of  an  oath  and 
the  test  of  cross-examination  as  a  prerequisite  for  the  admission  of 
verbal  testimony,  unless  it  discovers  in  the  nature  of  the  case  some 
other  sanction  or  test  deemed  equivalent  for  ascertaining  the  truth. 


Public  and  General  Interests  305 

The  matters  included  in  the  class  under  consideration  are  such 
that  many  persons  are  deemed  cognizant  of  them  and  interested  in 
their  truth,  so  that  there  is  neither  the  abiUty  nor  the  temptation  to 
misrepresent  that  exists  in  other  cases;  and  the  matters  are  presum- 
ably the  subject  of  frequent  discussion  and  criticism,  which  accom- 
plishes in  a  manner  the  purpose  of  a  cross-examination,  while  the 
persons  whose  declarations  are  offered  in  evidence  must  have  been 
in  a  situation  to  know  the  truth.  After  passing  such  an  ordeal  it  is 
reasonably  safe  to  accept  the  result  as  established  fact.  But  if  the 
fact  to  be  proved  is  a  particular  date,  though  connected  incidentally 
with  a  public  matter,  it  is  easy  to  see  that  it  could  not  stand  out  as  a 
salient  fact  for  contemporaneous  criticism  and  discussion  so  as  to 
furnish  any  guaranty  for  its  correctness;  so  that  the  general  rule  ex- 
cluding hearsay  evidence  applies  in  full  force.  The  human  memory 
is  proverbially  treacherous  even  in  regard  to  very  recent  dates,  and 
little  reliance  can  be  placed  on  the  sworn  testimony  of  living  wit- 
nesses in  such  matters,  unless  they  are  able  to  associate  with  date 
some  more  striking  fact. 

The  ruling  of  the  court  excluding  the  evidence  is  vindicated  not 
only  by  the  reasons  we  have  given,  but  also  by  decided  cases  which 
are  so  similar  to  the  case  at  bar  as  to  be  identical  in  principle. 

In  Frazer  v.  Hunter,  5  Cranch  C.  C.  470,  it  was  held  that  when 
the  question  is  upon  a  disputed  boundary  line  the  court  will  not  permit 
hearsay  evidence  to  be  given  that  a  particular  object,  such  as  a  spring, 
was  in  the  land  of  one  of  the  parties. 

In  Ireland  v.  Powell,  Peake's  Evidence,  14,  where  the  question  was 
whether  a  turnpike  was  erected  within  or  out  of  the  limits  of  the  town 
of  Wem,  Mr.  Justice  Chambre  permitted  the  plaintiff,  who  contended 
that  it  was  within  the  town,  to  give  evidence  of  general  reputation 
that  the  town  extended  to  a  close  called  the  Townsend  Piece,  and 
that  old  people  since  deceased  had  said  that  such  was  the  boundary 
of  the  town;  but  he  would  not  suffer  it  to  be  proved  that  those  per- 
sons had  said  that  there  were  formerly  houses  where  none  then  stood, 
observing  that  this  was  evidence  of  a  particular  fact  and  not  of  gen- 
eral reputation.  See  also  Cooke  v.  Banks,  2  Car.  &  P.,  478;  Weeks 
v.  Sparke,  i  Maule  &  Selw.  687.  And  in  i  Swift's  Digest,  766,  it  is 
said  that  the  tradition  of  a  particular  fact  is  not  admissible. 

A  new  trial  is  not  advised. 

In  this  opinion  the  other  judges  concurred. 


3o6  Cases  on  Evidence 

CADWALADER  v.  PRICE. 
Ill  Md.  310.     (1909) 

Boyd.,  C.  J.  This  is  an  appeal  from  a  judgment  rendered  in  favor 
of  the  defendant  (appellee)  in  an  action  of  ejectment  instituted  in 
Harford  county  and  removed  for  trial  to  the  Superior  Court  of  Balti- 
more City.  The  land  sued  for  is  described  in  the  declaration  by 
courses  and  distances,  and  contains  one-half  acre,  more  or  less. 

The  parcel  of  land  claimed  by  defendant  as  the  landing  is  less  than 
half  an  acre,  and  while  most  of  the  witnesses  did  not  know  the  bound- 
aries of  it  except  as  pointed  out  in  1883  by  Jackson  Dorney,  there 
was  unquestionable  evidence  tending  to  show  that  there  was  a  parcel 
of  land  known  as  King's  Creek. 

He  went  upon  the  land  in  1883  and  pointed  out  to  a  number  of 
persons,  who  were  witnesses  in  this  case,  the  Hnes  of  King's  Creek 
Landing — telling  them  that  a  line  between  two  stones  which  were 
then  there  (and  the  places  where  they  stood  were  located  on  the 
plat  by  the  surveyor)  was  the  western  boundary,  and  a  marsh  from 
the  north  stone  to  King's  Creek  was  the  northern  boundary  and 
King's  Creek  was  the  eastern  and  southern  boundaries.  There  ought 
no  longer  to  be  any  question  in  Maryland  about  the  right  to  prove 
private  boundaries  by  the  declarations  of  deceased  persons,  subject, 
of  course,  to  certain  well  recognized  limitations.  If  such  evidence 
were  excluded,  on  the  ground  that  it  was  hearsay,  it  would  be  impos- 
sible, in  portions  of  the  State  where  there  is  still  controversy  over 
boundary  lines,  to  establish  the  corners  and  lines  of  ancient  tracts.  It 
is  said  in  Dorsey  on  Ejectment,  57-58:  "It  may  be  asked,  how  can 
a  witness  be  called  to  identify  a  boundary  made  in  1680?  The  law 
does  not  require  this.  It  is  generally  true  that  hearsay  is  not  evidence ; 
yet  from  necessity  there  are  certain  exceptions.  The  inquiries  of  a 
jury  are  directed  to  identify  a  boundary,  and  it  may  be  proved  by 
traditional  evidence.  The  rules  of  evidence  permit  a  witness  to  refer 
to  the  declarations  of  a  deceased  person  who  was  on  the  survey. 
As  in  consanguinity,  so  boundaries  may  be  proved  by  hearsay  evi- 
dence; but  the  declarations  of  living  witnesses  cannot  be  received,  nor 
the  declarations  of  a  person  interested  in  establishing  the  fact." 

It  was  held  by  the  Provincial  Court  in  Howell  v.  Tilden,  i  H.  & 
McH.  84  that:  "Traditional  evidence  of  what  an  ancestor  of  the 
plaintiff,  who  was  seized  of  the  lands  in  question  fifty  years  ago, 
at  that  time  did  say  concerning  the  bounds  of  those  lands,  ought 


Public  and  General  Interests  307 

be  given  in  evidence  to  the  jury,  and  the  weight  of  it  left  to 
the  jury."  Redding  v.  McCubbin,  i  H.  &  McH.  368,  is  to  the  same 
effect.  In  Ridgely  v.  Ogle,  4  H.  &  McH.  123,  it  was  held  that:  "A 
plat  returned  in  an  ancient  ejectment  is  admissible  in  evidence  upon 
the  same  principle  that  hearsay  evidence  is  allowed  to  prove  bound- 
aries." See  also  Scott  v.  Ollabaugh,  3  H.  &  McH.  511,  and  Suavely 
v.  McPherson,  5  H.  &  J.  150.  In  Hall  v.  Gittings,  2  H.  &  J.  12 t, 
the  declarations  of  a  former  holder  of  the  adjoining  lands  as  to  the 
bounds  of  the  land  in  dispute  were  held  competent  and  admissible 
in  evidence,  it  not  appearing  to  the  court  by  the  plots  that  he  was 
interested  in  establishing  the  truth  of  the  facts  related  by  him  to 
the  witnesses.  See  also  Bladen  v.  Cockey,  i  H.  &  McH.  232;  Weems 
V.  Disney,  4  H.  &  McH.  156.  Other  cases  might  be  cited,  but  they 
cannot  be  found  either  in  the  notes  in  Dorsey  on  Ejectment  or  in  Mr. 
Brantly's  Annotated  Edition  of  the  early  cases.  Although  in  the 
later  decisions  of  this  court  the  question  may  not  have  been  passed 
on,  it  is  because  the  rule  has  been  too  generally  recognized  to  admit  of 
controversy.  An  examination  of  the  records  in  some  of  the  latter 
cases  will  doubtless  show  that  such  testimony  has  been  received,  and 
the  writer  of  this  opinion  knows  that  in  the  many  actions  of  ejectment 
and  trespass  quare  clausam  f regit  which  have  arisen  in  Western  Mary- 
land it  has  been  the  unquestioned  practice  to  prove  boundaries  by 
traditional  evidence. 

The  general  rule  in  this  country  is  thus  stated  in  4  Am.  &  Eng. 
Ency.  of  L.  851:  "Declarations  of  deceased  persons  are  admissible 
in  evidence  in  questions  relating  both  to  public  and  private  boundary 
lines,  provided  they  were  made  ante  litem  motam  and  by  a  person 
who  had  peculiar  means  of  information,  and  who  had  no  interest 
in  the  matter  at  issue  at  the  time  they  were  made."  In  5  Cyc.  956, 
it  is  said :  "Hearsay  evidence  as  to  boundaries  is  admissible  when 
there  has  been  so  great  a  lapse  of  time  as  to  render  it  difficult  to  prove 
the  original  boundary  lines  by  the  existence  of  the  primitive  land- 
marks," and  on  page  957,  "Reputation  or  tradition  is  very  generally 
held  to  be  admissible  in  evidence  to  prove  an  ancient  boundary, 
whether  public  or  private,  although  in  England  and  a  few  of  the 
United  States  its  admissibility  to  prove  a  private  boundary  is  limited 
to  cases  where  it  is  shown  that  such  boundary  is  co-incident  with  a 
public  or  quasi-puhWc  one.  Such  reputation  or  tradition  must,  how- 
ever, be  ascertained  as  to  the  subject-matter  as  direct  evidence  would 
be,  and  it  is  not  admissible  to  contradict  evidence  of  record;  and  in 


3o8  '  Cases  on  Evidence 

all  cases  proof  of  ancient  boundaries  by  common  reputation  must 
have  reference  to  a  time  ante  litem  mot  am." 

In  this  case  the  declarations  of  Jackson  Dtjrney  were  made  at  a 
time  he  had  no  interest  in  making  them,  before  any  controversy  about 
the  land  in  question  had  arisen,  when  he  was  pointing  out  the  bound- 
aries and  he  had  died  some  years  before  the  trial.  He  was  the 
former  owner  and  occupant  of  the  farm  and  landing  and  hence  was 
familiar  with  the  facts. 

Judgment  affirmed,  the  appellant  to  pay  the  costs  above  and  below. 


HATHAWAY  v.  GOSLANT. 
;;  Vt.  ipp.    (1904) 

Trespass  or  cutting  and  drawing  away  trees  from  plaintiff's  land. 
Plea,  the  general  issue.  Trial  by  jury  at  September  Term  1903. 
Washington  county,  Haselton,  J.,  presiding.  Verdict  and  judgment 
for  the  plaintiff.     The  defendant  excepted. 

The  evidence  on  both  sides  showed  that  the  plaintiff's  farm  is 
bounded  on  the  east  by  the  town  of  Marshfield,  on  the  south  by  land 
of  Fred  Lamberton,  on  the  north  by  land  of  Henry  Dow. 

The  exceptions  state  that:  "There  was  no  controversy  regarding 
any  line  of  the  plaintiff's  land,  or  of  Dow's,  except  the  line  between 
Dow  and  the  plaintiff.  That  line  was  in  controversy.  The  plaintiff 
claimed  that  it  went  northerly  of  the  line  claimed  by  Dow.  The 
points  of  controversy  on  the  Marshfield  town  line  were  six  rods  apart, 
between  Dow  and  the  plaintiff.  The  dispute  was  as  to  the  timber 
cut  between  those  two  lines. 

The  plaintiff's  evidence  tended  to  show  that  a  certain  ash  tree, 
which  was  one  in  question,  was  a  line  tree  between  his.  farm  and 
Dow's  while  the  defendant's  evidence  tended  to  show  that  this  tree 
was  on  Dow's  land,  a  few  feet  from  the  line  that  Dow  claimed  to; 
and  that  he  purchased  the  tree  of  Dow.  The  evidence  also  tended  to 
show  that  the  plaintiff's  father  owned  the  land  in  question  for  many 
years,  and  until  his  death  in  1886.  The  plaintiff  was  called  as  a  wit- 
ness, and  the  following  questions  and  answers  were  admitted,  against 
the  objection  and  exception  of  the  defendant:  "Q.  Now,  speaking 
about  this  ash  tree,  I  ask  if  at  some  time  your  father  told  you  that 
was  the  line  between  his  land  and  the  land  which  is  called  the  Dow 


Public  and  Geinerai,  Interests  309 

land  in  this   trial?     A.    Yes,   sir.     Q,     And  when  was  this?     A. 
A  year  or  two  before  he  died  in  1886.    He  died  in  1886,  and  I  mean 
a  year  or  two  before  that."     The  plaintiff  had  previously  testified 
that  there  never  was,  to  his  knowledge,  any  dispute  as  to  this  line  up 
to  the  time  of  the  cutting  of  the  timber  in  question  in  190 1.     In  the 
court  below,  the  objection  to  this  evidence  was  general,  and  in  this 
court,  the  only  reasons  urged  by  the  defendant  why  the  evidence 
should  have  been  excluded  are,  that  the  first  question  was  leading, 
and  that  "the  subject-matter  of  the  examination  as  inquired  about 
was  not  admissible."    It  does  not  appear  that  the  defendant  objected 
to  the  question  because  it  was  leading,  nor  that  the  court  did  not 
allow  the  question  to  be  answered  as  a  matter  of  discretion;  and 
for  these  reasons  the  objection  that  the  question  was  leading  is  not 
sustained.    The  objection,  that  "the  subject-matter  of  the  examination 
as  inquired  about  was  not  admissible,"  presents  no  question  respect- 
ing the  qualification  of  the  plaintiff's  father  to  speak  upon  the  subject 
of  the  line  in  question;  and  we  have  only  to  consider  whether  the 
subject-matter  was  a  proper  subject  of  inquiry.    The  admissibility  of 
declarations  to  show  boundaries  has  been  considered  by  this  court  in 
several  reported  cases,  and  while  the  holdings  have  not  been  entirely 
uniform,  as  will  be  seen  from  an  examination  of  the  cases  of  Wood 
V.  Willard,  36  Vt.  82;  Turner  Falls  Lumber  Co.  v.  Burns,  71  Vt. 
354;  Evarts  v.  Young,  52  Vt.  329;  Childs  v.  Kingsbury,  46  Vt.  47, 
and  Powers  v.  Sibley,  41  Vt.  288,  we  think  the  better  reasoning  is 
found  in  those  cases  where  it  is  held  that  declarations  similar  to  those 
in  question  are  admissible;  and  we  hold  that  the  questions  which  were 
objected  to  related  to  a  proper  subject  of  inquiry.     In  Wood  v.  Wil- 
lard, 37  Vt.  377,  it  is  held,  that  the  declarations  of  deceased  persons 
who  had  actual  knowledge  as  to  the  location  of  a  disputed  boundary, 
or,  who,  from  their  connection  with  the  property  itself,  or  their  situ- 
ation and  experience  in  regard  to  such  boundaries  and  the  surveys 
thereof,  had  peculiar  means  of  knowledge  of  the  same,  made  at  a 
time  when  they  had  no  interest  to  misrepresent,  and  made  when  upon 
or  in  the  immediate  vicinity  of  the  boundary  referred  to,  and  point- 
ing it  out,  are  admissible  evidence  as  to  the  location  of  such  boundary, 
when,  from  lapse  of  time,  there  can  be  no  reasonable  probability  that 
evidence  can  be  obtained  from  those  who  had  actual  knowledge  on 
the  subject.    But  this  rule  has  been  somewhat  modified  by  subsequent 
holdings.     Thus,  in  Powers  v.  Sibley  before  cited,  it  is  held,  that  it 
is  not  necessary  that  the  declarant  be  upon  or  in  the  immediate  vicin- 
ity of  the  boundary  in  dispute,  and  pointing  it  out,  in  order  to  make 


310  -    Cases  on  Evidence 

his  declaration  admissible.  In  this  case  the  declaration  was  held 
admissible,  notwithstanding  it  did  not  accompany  and  give  character 
to  any  act  affecting  the  declarant's  title.  In  Childs  v.  Kingsbury  and 
Turner  Falls  Lumber  Co.  v.  Bums  before  cited,  it  is  held,  that  the 
rule  that  the  declarant  must  have  no  interest  to  misrepresent  does 
not  require  that  he  be  wholly  disinterested  in  the  subject.  In  both 
of  these  cases  it  is  held,  that  the  fact  that  the  declarant  is  the  owner 
of  the  land  at  the  time  the  declaration  is  made  does  not  show  that  he 
is  interested  to  misrepresent;  and  that  declarations  made  by  such 
owners  of  land,  who  have  since  deceased,  are  admissible.  In  Wood 
V.  Willare,  36  Vt.  82,  it  is  said,  that  there  are  cases  where  a  party  may 
prove  his  own  declarations,  or  those  of  a  former  owner,  in  his  ovvn 
chain  of  title,  where  they  accompany  an  act,  or  a  possession,  as  giving 
it  explanation  and  character;  and  in  Evarts  v.  Young,  before  cited, 
it  is  said  that  a  party  is  not  allowed  to  show  his  own  declarations,  or 
the  declarations  of  those  through  whom  he  claims  title,  in  his  own 
favor,  unless  such  declarations  accompany  and  give  character  to  some 
act  affecting  his  title,  and  so  become  a  part  of  the  res  gestae.  The 
rule  thus  stated  is  a  rule  of  general  application,  and  allows  declara- 
tions to  be  shown  when  they  accompany  and  give  character  to  acts, 
as  a  part  of  the  res  gestae,  when  the  act  itself  is  admissible  as  evi- 
dence; and  declarations  respecting  boundaries  may  be  made  under 
circumstances  that  bring  them  within  this  rule,  but  their  admission 
is  not  controlled  by  it.  The  rule  which  permits  a  party  to  show  the 
declarations  of  a  person  who  has  deceased,  respecting  boundaries, 
is  an  exception  to  the  rule  that  excludes  hearsay  evidence ;  and  under 
it,  such  declarations  may  be  received  as  evidence,  notwithstanding 
they  are  not  a  part  of  the  res  gestae,  and  their  admission  is  not  de- 
pendent on  whether  they  accompany  and  give  character  to  some  act 
affecting  the  declarant's  title.     Wood  v.  Willard,  37  Vt.  377. 

Judgment  affirmed. 


Public  and  Ancient  Documents  311 

public  and  ancient  documents.i 

LINDSAY  V.  CITY  OF  CHICAGO. 
115  III.  120.    (1885) 

Craig,  J,  This  is  an  appeal  from  a  judgment  of  the  County  Court 
of  Cook  County,  confirming  a  special  assessment.  What  purports 
to  be  a  copy  of  the  ordinance  is  attached  to  the  petition.  It  was  es- 
sential for  the  city,  in  order  to  obtain  a  judgment  or  confirmation,  to 
aver  and  prove  that  an  ordinance  authorizing  the  improvement  had 
been  passed. 

But  it  is  contended  that  the  evidence  before  the  court  established 
the  existence  of  an  ordinance,  v/hile  on  the  other  hand  it  is  contended 
that  the  passage  of  an  ordinance  could  only  be  established  by  the  pro- 
duction of  the  journal  containing  the  proceedings  of  the  city  council, 
and  that  the  journal  must  show  that  the  yeas  and  nays  were  taken, 
and  that  a  majority  of  the  members  elected  voted  for  the  ordinance 
on  the  call  of  the  yeas  and  nays. 

It  is  too  plain  to  admit  of  argument,  that  where  the  ordinances  of 
a  town  or  city  have  been  printed  in  book  or  pamphlet  form,  pur- 
porting to  be  published  by  authority  of  the  board  of  trustees  or  city 
council,  the  book  shall  be  received  as  evidence  of  the  passage  of  the 
ordinance,  because  this  is  the  plain  language  of  the  statute.  But 
a  book  of  ordinances  was  not  put  in  evidence.  The  petitioner,  in  lieu 
of  the  book,  put  in  evidence  a  certified  copy,  attested  by  the  clerk, 
under  the  seal  of  the  corporation.  This,  in  our  opinion,  proved 
the  passage  of  the  ordinance  as  effectually  as  the  fact  would  have 
been  proven  had  a  printed  book  of  ordinances  been  admitted.  The 
language  found  in  the  first  part  of  section  4, — "All  ordinances,  and 
the  date  of  publication,  may  be  proven  by  the  certificate  of  the  clerk, 
under  the  seal  of  the  corporation," — will  admit  of  no  other  construc- 
tion. It  is  said  this  means  that  you  may  thus  prove  the  contents  of 
an  ordinance.  But  such  is  not  the  language  of  the  act.  The  legisla- 
ture no  doubt  intended,  by  the  use  of  this  language,  that  a  certified 
copy  of  an  ordinance,  under  the  seal  of  the  corporation,  made  by  the 
clerk  of  the  council,  should  have  the  same  force  and  effect,  as  evi- 
dence, as  a  printed  book  of  ordinances,  which,  in  express  terms,  is 


1  Hughes  on  Evidence,  pp.  83  and  91. 


312  Cases  on  Evidence 

made  evidence  of  the  passage  and  publication  of  an  ordinance. 

The  judgment  of  the  County  Court  will  be  affirmed. 


BOSTON  WATER  POWER  CO.  v.  JAMES  HANLON. 

1^2  Mass.  48 J.     (1882) 

Writ  of  entry  to  recover  a  parcel  of  land  in  Brookline.  Plea,  nul 
disseisin.  At  the  trial  in  the  Superior  Court,  before  Colburn,  J.  the 
jury  returned  a  verdict  for  the  tenant ;  and  the  demandant  alleged 
exceptions  to  the  exclusion  of  certain  evidence,  the  nature  of  which 
appears  in  the  opinion. 

Devens,  J.  The  finding  of  the  judge  who  presided  at  the  trial  that 
the  plottings  for  plans  and  the  field  notes  of  Mather  Withington,  a 
surveyor  long  since  deceased,  did  not  appear  to  have  been  made  by 
the  authority  or  procurement  of  the  grantors  of  either  party  to  this 
action,  cannot  be  here  reviewed.  Walker  v.  Curtis,  116  Mass.  98, 
they  did  not  come  from  the  custody  of  either  party  to  this  action, 
but  from  that  of  the  administratrix  of  Withington.  The  demandant 
contends  that  they  were  admissible  for  the  purpose  of  showing  the 
true  location  of  a  creek  which  was  the  boundary  line  of  the  mill  cor- 
poration under  whom  the  demandant  claimed,  and  thus  its  relation 
to  what  was  known  as  the  Punch-Bowl  Road,  in  the  same  way  that 
ancient  maps,  plans  and  deeds  between  strangers  are  held  admissible. 
Sparkhawk  v.  Bullard,  i  Met.  95.  Morris  v.  Callanan,  105  Mass.  129. 
Drury  v.  Midland  Railroad,  127  Mass.  571. 

The  evidence  of  such  ancient  documents  is  admitted  upon  the 
ground  that,  although  between  strangers,  they  are  of  such  a  character 
as  usually  accompany  transfers  of  title  or  acts  of  possession,  and 
purport  to  form  a  part  of  actual  transactions  referring  to  coexisting 
subjects  by  which  their  truth  can  be  tested,  and  there  is  deemed  to 
be  a  presumption  that  they  are  not  fabricated.  But  plottings  for 
plans  and  field  notes  are  memoranda  only,  which  may  never  have 
been  acted  on.  They  are  preparations  for  a  transaction  which  may 
never  have  taken  place.  The  fact  that  they  are  so  full  that  plans 
could  be  made  from  them  is  not  important;  they  still  lack  the  ele- 
ment which  makes  plans  admissible. 

Nor  are  they  admissible  as  the  declarations  of  a  person  deceased. 
The  rule  which  permits  the  introduction  of  reputation  of  tradition, 


PuBuc  AND  Ancient  Documents  313 

or  declarations  of  persons  deceased,  as  to  matters  of  public  or  general 
interest,  does  not  extend  to  questions  of  private  boundary.  Hall  v. 
Mayo,  97  Mass.  416. 

As  we  are  of  opinion  that  the  plottings  and  field  notes  were  rightly 
rejected,  which  was  the  only  question  argued  before  us,  the  entry 
must  be 

Exceptions  overruled. 


LAWRENCE  v.  TENNANT. 
64  N.  H.  532.    (1888) 

Trespass,  qu.  cl.  for  cutting  down  and  carrying  away  trees  growing 
on  the  plaintiff's  land  in  Epsom.  Facts  found  by  a  referee.  The 
defendants  justified  under  one  Steele,  who  was  the  owner  of  two 
"Home"  lots  lying  adjacent  to  the  plaintiff's  land  in  the  "Gore"  so- 
called.  The  question  was  as  to  the  true  location  of  the  line  between 
the  Home  lots  and  the  Gore^  that  being  the  line  between  the  plaintiff's 
land  and  that  of  Steele.  The  plaintiff  was  shown  a  plan  which  was 
marked  "plot  of  the  town  of  Epsom,  taken  on  a  scale  of  100  rods 
to  an  inch  July  2,  1800,  D.  L.  Morril,"  and  testified, — "That  plan 
was  given  to  my  father  by  Dr.  Sam  Morril,  brother  of  Gov.  Morril, 
who  made  it.  We  gave  it  to  Nathan  Griffin,"  Upon  cross-examina- 
tion he  testified, — "Father  told  me  Dr.  Morril  gave  it  to  him.  I  saw 
this  plan  when  father  was  plowing,  when  I  was  a  young  man ;  am 
now  sixty-nine  years  old.  When  I  first  saw  it,  it  was  at  our  house. 
Nathan  Griffin  told  me  father  gave  it  to  him.  Father  used  to  have  it 
in  his  surveying  tools.  Father  was  a  surveyor.  Can't  tell  how  long 
from  first  time  to  last  time  I  saw  it  in  father's  possession.  Father 
lived  where  I  lived.  He  lived  there  till  he  died.  Father  died  about 
1858." 

George  W.  Lane,  a  surveyor,  was  shown  this  plan,  and  testified, — 
"I  have  seen  Morril  plan..  I  have  had  it,  and  handed  it  to  one  of 
plaintiff's  counsel.  I  had  it  of  Mr.  John  Dolbear,  of  Epsom,  who 
wrote  History  of  Epsom  for  County  History.  I  have  had  this  plan 
before  this ;  the  first  time  I  went  to  survey  these  premises  I  had  this 
plan  with  Master  Nathan  Griffin,  an  old  surveyor;  had  it  in  1884 — 
October,  I  think."  Upon  this  evidence,  and  subject  to  exception  the 
plan  was  ruled  in. 


314  Cases  on  Evidence 

Blodgett,  J.  The  true  rule  as  to  receiving  documents,  ancient 
or  otherwise,  in  evidence  is  conceived  to  be  this :  The  party  offering 
the  paper  must  make  out  a  prima  facie  case  for  its  inspection ;  he  must 
show  that  the  paper  is  apparently  as  he  contends.  If  he  wholly  fail 
to  do  this,  the  court  should  reject  the  paper;  but  if  there  be  a  reason- 
able probability  established  that  the  paper  is  what  it  purports  to  be, 
the  question  then  becomes  one  for  the  jury,  and  the  paper  ought  to 
go  before  them  with  proper  instructions. 

The  real  question  affecting  the  consideration  of  such  documents 
with  the  tribunal  before  which  they  are  offered  is,  whether  they  are 
genuine,  and  contain  a  true  statement  of  what  they  purport  to  con- 
tain. If  found  to  possess  these  requisites  there  is  no  reason  why  they 
may  not  be  read  in  evidence.  Gibson  v.  Poor,  21  N.  H.  446.  In  this 
case  both  of  these  requisites  appear.  An  inspection  of  the  plan  leaves 
no  doubt  that  it  is  an  ancient  and  much  worn  document,  and,  taken 
in  connection  with  the  reported  evidence,  establishes  a  reasonable 
probability  that  it  is  what  it  is  marked  and  purports  to  be,  namely, 
"A  plot  of  the  town  of  Epsom,  taken  on  a  scale  of  one  hundred  rods 
to  an  inch  in  the  year  1800,  by  D.  L.  Morril." 

The  antiquity  and  genuineness  of  the  plan  thus  appearing,  it  was  of 
course  admissible  if  made  by  public  authority ;  and  if  not  so  made, 
it  was  none  the  less  admissible,  there  having  been  preliminary  evidence 
of  its  correctness.  Other  grounds  of  admissibility  need  not  be  con- 
sidered. 

Judgment  for  the  plaintiff  on  the  report. 


WHITMAN  V.  HENEBERRY. 
73  III.  109.     (1874) 

By  Craig,  J.  This  was  an  action  of  ejectment,  brought  by  Mathew 
Henneberry  in  the  Circuit  Court  of  Marshall  county,  against  appel- 
lants to  recover  a  certain  quarter  section  of  land  in  Marshall  county. 
The  venue  of  the  cause  was  changed  to  Peoria  county,  where  a  trial 
was  had  before  a  jury,  which  resulted  in  a  verdict  in  favor  of  ap- 
pellee. The  court  overruled  a  motion  for  a  new  trial,  and  rendered 
judgment  upon  the  verdict. 

The  patent,  the  original  deed  from  Dark  to  Eldred,  and  the  deed 


Public  and  Ancient  Documents  315 

from  Hodges  to  Henneberry,  were  all  burned  in  the  office  of  Burns 
&  Barnes,  in  Lacon,  on  the  i6th  day  of  April,  1871. 

The  deed  from  Clark  to  Eldred  was  not  acknowledged  as  required 
by  law  in  force  at  the  time  it  was  executed.  It  was  however,  allowed 
to  be  read  in  evidence  by  the  court  as  an  ancient  deed,  and  in  this, 
it  is  insisted  by  the  appellants,  the  court  erred,  for  the  reason,  as  it 
is  claimed,  the  proper  foundation  was  not  laid  to  permit  the  instru- 
ment to  be  read  as  an  ancient  deed. 

Deeds  that  are  more  than  thirty  years  old  are  called  ancient  deeds, 
and  they  are  admitted  in  evidence  without  proof  of  execution;  but 
before  this  can  be  done,  it  must  appear  that  the  instrument  comes 
from  such  custody  as  to  show  a  reasonable  presumption  of  its  genu- 
ineness, and  facts  and  circumstances  must  be  proven  which  will 
establish  the  fact  that  the  instrument  has  been  in  existence  the  length 
of  time  indicated  by  its  date. 

It  is  difficult  to  lay  down  a  general  rule  as  to  the  character  of 
proof  necessary  to  be  given;  but  where  the  deed  comes  from  the 
proper  custody  and  facts  and  circumstances  are  proven  to  the  court 
from  which  it  may  be  reasonably  inferred  that  the  deed  has  had  an 
existence  for  over  thirty  years,  such  ought  to  be  sufficient,  where  it 
is  entirely  free  from  any  just  ground  of  suspicion. 

The  deed  was  shown  to  be  in  existence  for  a  period  of  over  fifty 
years,  and  shown  to  be  in  custody  of  Eldred  and  his  heirs  who  were 
claiming  to  own  the  land  under  it,  and  paying  the  taxes  from  year  to 
year. 

We  are  aware  of  no  act  that  could  have  been  done  by  Eldred  or  his 
heirs  that  would  have  entitled  them,  or  their  grantee;  to  a  more  favor- 
able consideration  in  a  court  of  justice  in  regard  to  the  deed,  unless 
they  had  taken  actual  possession  of  the  land  under  the  deed,  which  in 
law  they  were  not  bound  to  do  in  order  to  be  entitled  to  read  it  in 
evidence  as  an  ancient  deed. 

Judgment  affirmed. 


GIBSON  V.  POOR. 
21  N.  H.  441.     (1850) 


Trespass,  for  breaking  and  entering  the  close  of  the  plaintiffs,  in 
Goffstown,  and  carrying  away  a  quantity  of  their  wood  and  timber. 
Plea — the  general  issue. 


3i6  Cases  on  Evidence 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiffs 
moved  to  set  the  same  aside  and  for  a  new  trial,  for  supposed  error 
in  the  rulings  of  the  court.  And  the  questions  arising  upon  said 
motion  were  transferred  to  this  court  for  decision. 

Eastman,  J.  It  is  believed  to  be  a  well  settled  principle,  that  lines, 
monuments,  and  boundaries  which  are  established  and  undisputed, 
although  not  immediately  connected  with  the  land  in  controversy,  are 
nevertheless  proper  and  competent  evidence  to  be  considered  by  a 
jury,  where  they  tend  to  elucidate  the  subject  in  dispute.  The  man- 
ner in  which  the  lands  of  this  country  were  originally  surveyed  and 
occupied,  has  rendered  such  kind  of  evidence  oftentimes  the  most 
satisfactory  in  ascertaining  the  true  line  between  adjoining  lots,  or 
the  line  adopted  and  recognized  as  true  by  the  original  settlers.  Mr. 
Greenleaf,  in  his  work  on  evidence,  remarks,  that  by  far  the  greatest 
portion  of  our  territory  was  originally  surveyed  in  large  masses  or 
tracts,  owned  either  by  the  State,  or  by  the  United  States,  or  by  one 
or  a  company  of  proprietors ;  under  whose  authority  these  tracts  were 
again  surveyed  and  divided  into  lots  suitable  for  single  farms,  by 
lines  crossing  the  whole  tract  and  serving  as  the  common  boundary 
of  very  many  farm  lots  lying  on  each  side  of  it.  So  that  it  is  hardly 
possible  to  prove  the  original  boundaries  of  one  farm  without  affect- 
ing the  common  boundary  of  many,  i  Greenleaf.  Ev.  sec.  145,  note. 
These  remarks  apply  in  their  full  force  to  the  original  survey  of  lands 
in  this  State.  Proprietors  of  tracts  and  townships  held  their  meetings, 
appointed  their  surveyors,  run  out  their  lands,  made  plans  and  maps 
of  the  same,  drew  their  riglits  and  made  conveyances  when  deemed 
necessary.  These  records  and  plans  are  the  source  of  most  of  the 
titles  to  real  estate  within  our  limits;  and  when  properly  verified  are 
always  received  in  evidence  in  all  matters  to  which  they  refer.  Such 
is  the  constant  practice  of  the  courts  in  this  State,  and  such  is  also 
the  general  practice  of  most  other  jurisdictions.  Records  of  original 
proprietors,  their  plans  and  maps,  the  location  of  lands  by  the  ancient 
settlers,  and  all  evidence,  whether  documentary  or  parol,  which  bears 
upon  the  point  at  issue  and  is  not  inadmissible  upon  general  prin- 
ciples, is  received  in  cases  of  disputed  boundary.  In  Smith  v.  Perwitt, 
2  A.  K.  Marsh.  (Ky.)  Rep.  158,  it  is  said  that  boundary  may  be 
proved  by  every  Idnd  of  evidence  which  is  admissible  to  establish 
any  other  fact;  and,  where  the  boundary  is  ancient,  even  reputation 
is  admissible.  To  the  same  effect  are  Taylor  v.  Rowe  et  al.  4  Hawks, 
116;  Smith  V.  Norvells,  2  Littell,  159;  Ralston  v.  Miller,  3  Rand.  44. 
In  some  respects  courts  have  gone  farther  in  breaking  over  established 


Public  and  Ancient  Documents  317 

principles  of  evidence  upon  this  subject  than  upon  almost  any  othec. 
Hence  hearsay,  not  amounting  to  tradition  or  general  reputation,  but 
from  a  single  individual,  is  received  upon  this  subject.  Some  courts 
confine  this  description  of  evidence  to  boundaries  of  parishes  and  such 
tracts  as  are  of  general  and  public  interest,  while  others  admit  it  in 
all  controversies,  whether  pertaining  to  public  or  private  rights.  The 
English  rule  confines  it  to  matters  of  public  and  general  interest,  and 
the  same  rule  is  adopted  in  some  of  the  United  States ;  while  in  other 
states  the  evidence  is  freely  admitted  without  regard  to  the  nature  or 
character  of  the  tract  in  dispute,  or  the  parties  interested  therein. 
Among  the  numerous  authorities  bearing  upon  this  matter  may  be 
enumerated,  Boardman  v.  Read,  6  Peters,  341 ;  Buchanan  v.  Moore, 
10  Serg.  &  Rawle,  281;  McDonald  v,  McCall,  10  Johns,  377;  Spear 
V.  Gate,  3  McCord,  227;  Wooster  v.  Butler,  13  Conn.  309;  Weems 
V.  Disney,  4  Har.  &  McH.  158.  In  this  State  the  rule  is,  that  state- 
ments of  deceased  individuals  who  from  their  situation  had  the  means 
of  knowledge  and  no  interest  to  misrepresent,  are  admissible.  Shep- 
herd V.  Thompson,  4  N.  H.  Rep.  213.  The  practice  under  this  decision 
has  been,  not  to  limit  the  evidence  to  subjects  of  general  interest,  but 
to  extend  it  to  all  matters  of  boundary,  whether  pertaining  to  public 
tracts  or  private  rights. 

The  evidence  in  regard  to  the  plan  found  in  possession  of  Gilchrist, 
was  also  competent  to  be  considered.  Had  this  plan  been  produced 
from  among  the  records  of  the  town-clerk,  having  been  received  by 
him  from  his  predecessor  in  office,  there  would  probably  have  been 
no  question  made  respecting  it ;  for  notwithstanding  it  is  without  date, 
yet  being  ancient,  and  made  by  Patten  and  the  records  showing  that 
Patten  with  another  was  appointed  to  survey  the  town  into  lots,  the 
whole  current  of  authorities  sustains  its  admissibility.  Chapman  v. 
Cowlan,  13  East.  10;  i  Phil.  Ev.  418;  lb,  481 ;  4  Esp.  i ;  6  Dow,  202; 
Hewlet  v,  Larroway,  3  Johns.  Ca.  283 ;  i  Green.  Ev.  sec.  142. 

The  reason  why  it  is  required  that  an  ancient  document  shall  be. 
produced  from  the  proper  depository  is,  that  thereby  credit  is  given 
to  its  genuineness.  Were  it  not  for  its  antiquity,  and  the  presumption 
that  consequently  arises  that  evidence  of  its  execution  cannot  be 
obtained,  it  would  have  to  be  proved.  It  is  not  that  any  one  particu- 
lar place  of  deposit  can  have  mqre  virtue  in  it  than  another,  or  make 
that  true  which  is  false,  but  the  fact  of  its  coming  from  the  natural 
and  proper  place  tends  to  remove  presumptions  of  fraud  and 
strengthens  the  belief  in  its  genuineness.  It  may  be  false,  and  so 
shown,    notwithstanding   the   presumptions    in    its    favor.      If    found 


3i8  Cases  on  Evidence 

where  it  would  not  properly  and  naturally  be,  its  absence  from  the 
proper  place  must  be  satisfactorily  accounted  for;  but  that  being  done 
and  all  suspicion  against  its  genuineness  removed,  we  can  discover 
no  reason  why  it  may  not  be  read  in  evidence.  The  real  question 
which  is  to  affect  its  consideration  with  the  jury  is,  whether  the  in- 
strument offered  is  genuine,  and  contains  a  true  statement  of  what 
it  purports  to.  In  The  Bishop  of  Meath  v.  Marquis  of  Winchester,  2 
Bing.  183,  Tindal,  C.  J.,  speaking  of  ancient  documents,  holds  this 
language.  "It  is  not  necessary  that  they  should  be  found  in  the  best 
and  most  proper  place  of  deposit.  If  documents  continued  in  such 
custody,  there  never  would  be  any  question  as  to  their  authenticity; 
but  it  is  when  documents  are  found  in  other  than  their  proper  place 
of  deposit,  that  the  investigation  commences  whether  it  was  reason- 
able and  natural  under  the  circumstances  in  the  particular  case,  to 
expect  that  they  should  have  been  in  the  place  where  they  are  actually 
found ;  for  it  is  obvious,  that  while  there  can  be  only  one  place  of 
deposit  strictly  and  absolutely  proper,  there  may  be  many  and  various 
that  are  reasonable  and  probable,  though  differing  in  degree;  some 
being  more  so,  some  less ;  and  in  those  cases  the  proposition  to  be 
determined  is,  whether  the  actual  custody  is  so  reasonably  and  prob- 
ably accounted  for,  that  it  impresses  the  mind  with  the  conviction, 
that  the  instrument  found  in  such  custody  must  be  genuine."  Some 
authorities  hold,  that  the  antiquity  of  the  document  is  alone  sufficient 
to  entitle  it  to  be  read,  and  that  the  other  circumstances  only  go  to 
its  effect  in  evidence.  2  Poth.  Ob.  App.  XVI.  sec.  5,  p.  149.  See  also 
Jackson  v.  Larroway,  Johns.  Ca.  283;  Doe  v.  Burdett,  4  Ad.  &  El.  i. 

Judgment  on  the  verdict. 


BERTRAM  v.  WITHERSPOON'S,  Admr. 

138  Ky.  116.     (ipio) 

HoBSON,  J.  Carrol  Markham  died  a  resident  of  Warren  county 
on  February  22,  1881,  the  owner  of  certain  real  estate.  He  left 
surviving  him  two  daughters,  Alice  Witherspoon,  the  wife  of  Thomas 
Witherspoon,  and  Sadie  Markham,  now  Sadie  Bertram.  Mrs.  Wither- 
spoon died  about  the  year  1888,  leaving  surviving  her  a  son  Porter 
Witherspoon.  After  her  death,  her  husband  married  a  second  time, 
and  by  his  second  wife  had  two  sons.     He  and  his  second  wife  died 


PuBuc  AND  Ancient  Documents  319 

about  10  years  later.  Porter  Witherspoon  died  February  4,  1904, 
and  this  controversy  has  arisen  between  his  aunt,  Sadie  Bertram, 
and  his  two  half-brothers,  the  children  of  his  father  by  his  second 
marriage,  as  to  who  inherited  from  his  mother,  and  she  inherited  from 
her  father,  Carroll  Markham. 

The  case  turns  purely  on  a  question  of  fact,  and  on  such  matters 
we  give  some  weight  to  the  judgment  of  the  chancellor,  and  do  not 
disturb  his  finding  where  the  evidence  is  conflicting,  and  on  the  whole 
case  the  mind  is  left  in  doubt.  The  aunt  introduced  five  or  six  wit- 
nesses, who  knew  the  family,  and  fixed  the  age  of  Porter  by  refer- 
ence to  the  ages  of  their  own  children  or  other  circumstances  testifying 
that  he  was  born  in  April,  1883.  On  the  other  hand,  the  plaintiflf 
introduced  several  persons,  who  had  equal  means  of  knowing  and 
fixed  the  birth  of  the  child  in  about  the  same  way  testifying  that  he 
was  born  in  April,  1882,  The  numerical  preponderance  of  the  testi- 
mony is  with  Mrs.  Bertram,  but  the  following  facts  support  the  con- 
clusion of  the  chancellor :  Porter  himself  said  on  different  occasions 
that  he  was  born  in  April,  1882.  In  April,  1903,  he  settled  with  his 
guardian,  and  took  charge  of  his  property.  None  of  his  relatives 
at  that  time  raised  any  question  that  he  was  not  of  age.  On  the  con- 
trary, Mrs.  Bertram  then  told  the  tenant  who  was  living  on  the  land 
that  Porter  was  of  age,  and  that  the  tenant  should  pay  the  rent  to 
him.  In  addition  to  this,  the  family  Bible  is  produced,  which  shows 
that  he  was  born  in  April,  1882;  and,  while  the  handwriting  of  the 
entry  is  not  shown  to  be  that  of  his  father,  the  fact  that  there  was 
this  entry  in  the  family  Bible  is  some  evidence,  it  not  appearing  who 
made  it,  for  it  clearly  appears  that  it  was  in  the  Bible  at  his  father's 
death,  and  long  before  there  was  any  question  raised  about  his  age. 
He  was  the  only  child  born  in  the  family,  and  so  this  was  the  only 
birth  entered  in  the  Bible.  In  cases  of  this  sort,  where  all  the  par- 
ties are  dead,  the  entry  in  the  family  Bible  may  be  considered  without 
proof  of  the  handwriting,  when  it  is  shown  to  be  an  ancient  entry, 
made  before  there  was  any  motive  for  putting  a  false  entry  in  the 
Bible.  The  Bible  was  taken  from  his  father's  house  after  his  death, 
and  it  then  had  this  entry.  Nobody  is  living  now  who  would  reason- 
ably know  who  made  the  entry,  as  Thomas  Witherspoon  and  his  two 
wives  are  dead,  and  the  two  sons  by  the  second  marriage  were  too 
young  to  know  anything  about  such  matters.  A  family  Bible  is  the 
book  in  which  such  entries  are  usually  made,  and  when  the  Bible 
is  produced  with  the  entry  in  it  when  it  came  from  the  possession  of 
Thomas  Witherspoon,  it  may  properly  be  considered  as  evidence.     In 


320  Cases  on  Evidence 

addition  to  this  the  school  census  for  a  number'  of  years  is  produced, 
and  these  all  show  that  Porter  was  born  in  April,  1882.  The  school 
census  is  a  public  record,  parents  are  required  to  give  in  the  ages  of 
their  children.  These  reports  were  made  during  the  life  of  Thomas 
Witherspoon,  and  are  better  evidence  now  of  the  date  of  Porter's 
birth  than  the  recollection  of  witnesses  as  to  a  date  more  than  25 
•years  ago.  In  addition  to  this  we  think  the  facts  that  Porter  himself 
always  understood  that  April  20,  1882,  was  the  date  of  his  birth,  that 
Mrs.  Bertram,  herself  seems  to  have  so  understood  when  the  tenant 
asked  her  about  it,  and  that  there  was  no  controversy  about  his  age 
until  after  his  death,  are  entitled  to  no  little  weight. 

Judgment  affirmed. 


UNION  CENTRAL  LIFE  INS.  CO.  v.  POLLARD. 

94  Va.  146.     (i8g6) 

This  was  a  proceeding  by  notice  on  an  insurance  policy  on  the  life 
of  Augustus  M.  Broach.  The  beneficiary  in  the  policy,  the  plaintiff 
in  the  court  below,  was  Dollie  E.  Pollard,  his  daughter.  There  was  a 
verdict  and  judgment  for  the  plaintiff  for  the  sum  of  four  thousand 
dollars,  the  amount  of  the  policy,  subject  to  a  credit  for  two  hundred 
and  seven  dollars  and  twelve  cents,  as  of  May  i,  1893,  being  the 
amount  of  the  last  premium  due  on  the  policy  which  had  been  ten- 
dered in  due  time  to  the  company,  but  refused  by  it.  The  defense 
relied  on  was  that  the  assured  had  fraudulently  represented  him- 
self as  being  a  year  younger  than  he  really  was,  and  that  he  was 
diseased  and  failed  to  disclose  it.  On  the  same  day  on  which  the 
policy  in  suit  was  issued  the  assured  made  three  applications  for  in- 
surance on  his  life  for  his  different  daughters,  in  each  of  which,  as 
well  as  the  application  on  which  the  policy  in  suit  was  issued,  he 
gave  as  the  date  of  his  birth  May  8,  1839.  In  a  written  application 
to  the  Valley  Mutual  Life  Association  of  Virginia,  dated  December  12, 
1882,  by  which  he  applied  for  a  policy  for  the  benefit  of  his  wife  and 
children,  he  gave  as  the  date  of  his  birth  May  8,  1838.  What  was 
called  the  family  bible  was  introduced  to  show  his  age,  and  in  the 
records  of  births  his  name  and  others  appear  in  the  handwriting  of 
a  stranger,  and  the  date  of  his  birth  is  given  as  May  8,  1838.  The 
bible  itself  was  published  some  years  later  but  it  was  shown  that  it 


Account  Book  Entries  321 

was  the  bible  kept  in  the  family  as  the  family  bible,  accessible  to  all 
the  family,  and  contained  the  dates  of  the  births  and  deaths  of  the 
family.  Objection  was  made  to  the  introduction  of  the  foregoing 
entries,  but  was  overruled,  and  exception  taken  by  the  plaintiff. 

Buchanan,  J.  The  defendant  in  making  its  defense  sought  to 
show  that  one  or  more  of  the  material  statements  made  by  the  in- 
sured in  his  application  were  false  and  fraudulent.  To  do  this  it 
offered  in  evidence  the  family  bible  of  the  insured,  and  read  to  the 
jury  an  entry  which  tended  to  prove  that  he  was  born  on  the  8th 
day  of  May,  1838,  instead  of  May  8,  1839,  as  stated  in  his  applica- 
tion for  the  policy  sued  on.  Although  it  appeared  that  the  entry  read 
to  the  jury  as  to  the  date  of  his  birth  was  made  by  a  person  who  was 
not  a  member  of  his  family,  it  was  admissible  evidence,  and  tended 
to  prove  the  date  of  the  birth  of  the  insured.  The  admissibility  of 
an  entry  in  a  family  bible  does  not  depend  upon  the  handwriting  or 
authorship  of  the  entry,  but  upon  the  fact  that  it  is  in  the  family 
bible.  It  is  of  the  nature  of  a  record,  and,  being  produced  from  the 
proper  custody,  is  itself  evidence.  The  reason  why  it  is  admissible, 
although  the  handwriting  be  unknown  or  made  by  others  than  the 
family,  is  simply  because  the  bible  being  in  the  family,  where  ail 
have  access  to  it,  the  presumption  is  that  the  entry  would  not  be  per- 
mitted to  remain  if  the  whole  family  did  not  adopt  it,  and  thereby* 
give  authenticity  to*  it.  Monkton  v.  Attorney  General,  11  Eng.  Chy. 
R.  at  pages  162-3  (Russ  &  Mylne)  ;  Hubbard  v.  Lees,  i  Law  Rep. 
(Court  of  Ex.)  255,  258;  I  Taylor  on  Ev.  sec.  650;  i  Greenleaf  on 
Ev.  sees.  104,  105. 

Reversed  on  another  ground. 


ACCOUNT  BOOK  ENTRIES.i 

VEITHS  V.  HAGGE. 
8  Iowa  162 .     (i8^p) 

This  was  an  action  upon  a  promissory  note  for  $1,050,  commenced 
by  attachment. 

The  defendant,  in  order  to  j)rove  the  accounts  against  the  plaintiff, 
produced  in  evidence  his  books  of  account,  having  first  introduced 
the  necessary  preliminary  evidence  in  verification  of  said  books;  and 


1  Hughes  on  Evidence,  p.  104. 


322  Cases  on  Evidence 

also  called  as  a  witness  one  Heinrich  Jensen,  who  testified  that  he 
was  empoyed  as  a  clerk  in  the  store  of  defendant,  from  the  first  of 
March,  1855,  to  the  first  of  ]\farch,  1856  and  that  plaintiff,  during 
that  time,  was  a  customer  at  said  store,  and  was  in  the  habit  of  bor- 
rowing sums  of  money  from  defendant,  which  were  charged  to  him 
on  the  said  books  of  account.  The  bill  of  exceptions  then  recites, 
that  the  defendant  offered  no  evidence  independent  of  said  books, 
in  support  of  the  specific  items  of  the  cash  charged  against  the  plain- 
tiff in  the  accounts ;  and  that  the  plaintiff  offered  no  independent 
evidence  on  his  part  to  prove  any  payments  made  by  him  to  the 
defendant,  but  relied,  in  order  to  estabHsh  the  same,  on  the  credits 
given  to  him  for  such  payments,  upon  the  accounts  offered  in  set-off. 
and  the  said  books  of  account. 

Stockton,  J.  Upon  the  question  of  the  admissibility  of  the  party's 
book  of  entries  for  the  purpose,  and  the  extent  to  which  it  is  allow- 
able to  prove  by  them  the  cash  items  in  an  account,  the  rule  varies 
in  the  different  states.  In  Massachusetts,  Maine  and  New  Hamp- 
shire, money  charges  may  be  proved  by  them  to  the  extent  of  $6.66, 
but  not  beyond.  Union  Bank  v.  Knapp,  3  Pick.  109;  Burns  v.  Fay, 
14  id.  12 ;  Prince  v.  Smith,  4  Mass.  455 ;  Wetherell  v.  Swan,  32  Maine, 
247;  Richardson  v.  Emery,  3  Foster,  220;  Bassett  v.  Spofford,  11 
N.  H.  169. 

In  Pennsylvania,  the  book  of  original  entries,  hnade  by  the  party, 
and  verified  by  his  oath,  is  competent  evidence  of  goods  sold  and 
delivered,  and  work  done,  and  of  the  price,  but  not  of  money  lent  or 
paid.    Ducoign  v.  Schreppel,  i  Yates,  347. 

In  South  Carolina,  the  book  of  the  party  is  evidence  to  prove  the 
delivery  of  articles  sold,  or  work  done,  and  nothing  more.  St.  Phil- 
lip's Church  V.  White,  2  McMullen,  312. 

In  Delaware,  by  statutory  regulation,  in  an  action  for  articles  sold 
and  delivered,  and  other  matters  properly  chargeable  in  an  account, 
the  oath  of  a  plaintiff,  together  with  a  book  regularly  and  fairly  kept, 
are  declared  to  be  sufficient  in  all  cases  to  charge  a  defendant.  Halls 
Revised  Laws,  89.  But  the  courts  have  held  that  cash  is  not  a  matter 
properly  chargeable  in  account.  Smith  v.  M'Beath,  cited  in  Harring- 
ton, 346, 

In  New  York,  in  Case  v.  Potter,  8  Johnson,  211,  the  question  of 
admissibility  was  not  decided;  but  it  was  said  by  the  court,  that  al- 
though a  shop  book  might  be  admitted  in  a  case  of  a  sale  and  delivery, 
yet  the  usage  "can  never  apply  to  a  charge  for  cash  lent,  but  only  to 
the  regular  entries  of  the  party  in  the  usual  course  of  hi?  business." 


Account  Book  Entries  323 

In  Vossbing  v.  Thayer,  12  Johns.  461  the  court  say :  that  "books  of 
account  are  not  evidence  of  money  lent,  because  such  transactions  are 
not,  in  the  usual  course  of  business,  matters  of  book  account." 

In  IlHnois,  the  rule  in  New  York  has  been  adopted,  and  it  is  held, 
that  upon  the  necessary  and  usual  preliminary  proof  being  made,  in 
case  of  open  account,  composed  of  many  items,  the  plaintiff's  book 
of  accounts  is  admissible;  but  that  this  does  not  apply  to  an  action 
for  money  lent,  as  that  is  not  usually  the  subject,  of  a  charge  in  ac- 
count— a  note  being  generally  taken.     Boyer  v.  Sweet,  3  Scam.  120. 

We  think  the  general  rule  is  clearly  established  by  these  authorities, 
that  a  charge  for  "money  paid,"  or  "money  lent,"  cannot  be  proved 
by  a  party's  book  of  accounts;  that  such  transactions  are  not  usually 
the  subject  of  a  charge  in  account;  and  that  charges  of  that  nature  are 
not  such  as  are  made  in  the  ordinary  course  of  business  by  one  party 
against  another. 

It  may  be  safely  affirmed  that  the  general  rule  in  the  business  trans- 
actions of  men  is,  that  the  person  lending  or  paying  money  usually 
takes  a  note  or  receipt.  As  is  said,  however,  by  Hitchcock,  J.,  in 
Crane  v.  Sperar,  8  Ham.  494  an  individual  might  be  engaged  in  a 
business  that  would  seem  to  justify  such  charges — as  where  one's 
ordinary  business  may  be  said  to  consist  in  receiving  money  on  de- 
posit and  paying  it  out  for  others.  When  such  fact  is  shown,  the 
book  may  be  proper  evidence  of  the  payment  of  money.  This  would 
not,  however,  apply  to  the  case  of  a  party  engaged  in  the  mere  busi- 
ness of  keeping  a  retail  store,  whose  customers  purchase  goods  of 
him  on  credit,  which  are  charged  to  them  in  a  running  account.  Loan- 
ing, or  paying  out  money  to  his  customers,  is  no  part  of  such  a  per- 
son's business.  They  would  not  ordinarily  expect  to  find  themselves 
charged  in  their  accounts  with  sums  of  money  lent  or  paid. 

Judgment  reversed. 


YOUNG  V.  JONES. 
8  Iowa  220.     (18 jp) 


The  plaintiff  sued  the  defendant,  claiming  the  sum  of  $164.50,  and 
averring  that  at  the  special  instance  and  request  of  defendant,  he 
worked   for  him  ninety-four  days,  and  defendant  promised  to  pay 


324  Cases  on  Evidence 

him  therefor  $1.75  per  day,  which  he  now  refuses,  &c.  The  defend- 
ant answered,  denying  that  the  plaintiff  worked  ninety-four  days,  as 
alleged;  denying  that  he  owed  the  plaintiff  $164.50  as  alleged,  or  any 
part  thereof;  and  denying  that  he  undertook  and  promised  to  pay 
plaintiff  $1.75  per  day  for  his  work.  There  was  also  a  plea  of  pay- 
ment and  of  set-off. 

The  defendant  proposed  to  prove  his  set-off  by  his  books  of  ac- 
count and  in  the  language  of  the  bill  of  exceptions,  "in  the  regular 
manner,  as  provided  by  law,  qualified  the  same,  and  that  each  and  all 
the  items  in  defendant's  set-off  were  charged  in  defendant's  book  of 
accounts."  Thereupon  the  book  was  permitted  to  go  to  the  jury  as 
evidence.  The  set-off  contained  items  of  money  paid  to  plaintiff, 
amounting  to  thirty-five  dollars — one  item  of  twenty  dollars  and  three 
of  five  dollars  each.  The  court  charged  the  jury,  that  the  "items 
of  the  set-off  for  money  paid,  could  not  be  proved  by  the  book  of  ac- 
counts; and  that  the  book  was  not,  of  itself,  evidence  of  the  fact 
of  money  paid  to  plaintiff,  as  charged  therein,  and  contained  in  de- 
fendant's set-off.    To  this  ruling  of  the  court,  the  defendant  excepted. 

Stockton,  J.  Books  of  account  are  competent  evidence,  when  the 
charges  they  contain  are  made  in  the  ordinary  course  of  business. 
This  fact  is  to  be  determined  by  the  jury,  from  the  charges  them- 
selves, and  from  the  rules  of  law  applicable  to  the  business  transac- 
tions of  men.  One  of  these  rules  is,  that  the  loan,  or  payment  of 
money,  is  not  ordinarily  the  subject  of  a  charge  in  book  account; 
and  that  the  charge  not  being  such  as  is  made  in  the  ordinary  course 
of  business,  by  one  party  against  another,  cannot  be  proved  by  the 
account  book.  To  render  the  account  book  competent  to  prove  the 
payment  of  money,  the  party  offering  it  must  show  that  he  is  en- 
gaged in  a  business  to  justify  such  charges ;  as,  to  illustrate,  in  the 
business  of  banking,  or  of  receiving  money  on  deposit,  and  paying 
it  out  for  others.  If  the  payment  of  loans  of  money  paid,  were  made 
in  the  ordinary  course  of  business,  he  may  justly  claim  the  right  to 
prove  them  by  his  books,  but  not  otherwise. 

The  rule  that  the  books  are  inadmissible  to  prove  the  loan  or  payment 
of  money,  has  been  so  far  departed  from  in  some  of  the  New  Eng- 
land states,  as  to  allow  the  proof  by  the  book  of  original  entries,  of 
the  payment  of  money  not  exceeding  forty  shillings,  or  six  dollars 
and  sixty-six  cents  C$6.66).  Bassett  v.  Spofford,  11  N.  H.  169; 
Burns  v.  Fay,  14  Pick.  12;  Union  Bank  v.  Knapp,  3  id.  109;  Prince 
v.  Smith,  4  Mass.  455;  Wetherell  v.  Swan,  32  Me.  247;  Richardson 
V.  Emery,  3  Foster,  220. 


Account  Book  Entries  325 

The  exception  may  have  some  show  of  necessity,  if  not  of  principle, 
to  support  it.  Our  statute,  however,  has  made  no  such  distinction, 
as  that  small  sums  of  money  may  be  proved  by  a  party's  books  of 
account,  but  that  large  sums  shall  not  be  so  proved.  If  allowed  at 
all,  the  privilege  must  be  strictly  guarded,  and  only  admitted  in  cases 
where  the  jury  may  be  of  opinion,  that  the  party  is  without  any  other 
proof;  and  that  there  has  been  such  a  course  of  continuous  dealing 
between  the  parties,  as  that  small  sums  of  money  passed  between  them 
in  the  ordinary  course  of  business,  and  became  the  legitimate  subject 
of  a  charge  in  book  account,  by  one  against  the  other.  If  they  should 
so  judge,  we  think  they  should  be  at  liberty  to  allow  the  same. 

Judgment  reversed  on  another  ground. 


CUMMINGS  V.  NICHOLS. 
15  N.  H.  420.     (1843) 


Assumpsit  upon  an  account  annexed  to  the  writ.  The  defendant 
had  instituted  an  action  against  the  plaintiff,  founded  on  his  account, 
and  by  agreement  of  the  parties  both  actions  were  submitted  to  the 
jury  at  the  same  time. 

Upon  the  trial,  the  plaintiff  offered  his  book  of  accounts,  with  his 
oath,  in  support  of  the  charges  in  the  account. 

The  defendant  objected  to  the  admission  of  the  book  as  evidence 
to  the  jury,  but  the  objection  was  overruled. 

Parker,  J.  There  is  no  particular  form  in  which  the  book  of  a 
party  must  be  kept,  in  order  to  its  admission  as  evidence,  in  support 
of  his  account.  But  it  must  be  kept  in  such  a  mode  as  to  show,  of 
itself,  a  charge  against  the  adverse  party,  and  the  nature  of  that 
charge,  so  that  the  book,  in  connection  with  the  party's  oath  that  the 
book  is  his  original  book  of  entries,  that  the  charges  are  in  his  hand- 
writing, that  they  were  made  at  the  time  they  purport  to  have  been 
made,  and  at  or  near  the  times  of  the  delivery  of  the  articles,  or  the 
performance  of  the  services,  will  show  the  nature  of  the  claim,  with- 
out further  evidence  from  the  party  to  interpret  the  meaning  of  arbi- 
trary characters,  the  signification  of  which  is  known  only  to  himself. 
It  may  be  in  such  characters  as  are  in  common  use  by  persons  of  a 
particular  trade  or  profession,  and  which  would  not  readily  be  under- 


326  Cases  on  Evidence 

stood  by  persons  not  conversant  with  the  subject  matter;  and  in  such 
case,  evidence  of  other  persons  may  be  admitted,  to  explain  the  mean- 
ing usually  attached  to  characters  of  that  description.  But  in  ordi- 
nary cases,  the  suppletory  evidence  of  the  party,  in  support  of  his 
book,  goes  no  further  than  to  the  particulars  above  specified.  3  N.  H. 
Rep.  157,  Eastman  v.  Moulton. 

To  be  admissible,  the  entries  should  be  made  at  or  near  the  time  of 
the  transaction,  and  the  oath  of  the  party  must  verify  that  fact.  No 
particular  limit  is  fixed  beyond  which  the  entry  cannot  be  made.  The 
court  must  judge  whether  the  circumstances  of  the  case  bring  it  within 
the  rule.  But  it  is  clear  that  the  entries  must  not  be  memoranda  made 
from  the  memory  of  things  which  have  long  since  passed. 

The  entries  must  have  been  made  at  the  time  they  purport  to  have 
been  made.  This  implies  that  there  must  be  dates,  so  far,  at  least, 
that  the  court  may  see  that  the  case  comes  within  the  rule.  But  it  is 
not  necessary  that  the  precise  day  of  the  month  should  be  affixed 
to  the  charge  in  all  cases.  To  require  this  would  exclude  the  books 
of  many  individuals.  The  book  has  been  admitted  when  only  the 
month  has  been  specified,  it  appearing  to  be  regular  in  other  respects. 

The  charges  must  be  specific  and  particular ;  but  in  this  respect 
some  latitude  is  allowed,  depending  upon  the  nature  of  the  case.  See 
II  N.  H.  167,  Bassett  v.  Spoflford.  In  a  charge  for  work  and  labor, 
continuing  from  day  to  day,  for  several  days,  it  is  not  necessary  to  set 
down  a  charge  for  each  day  by  itself.  But  a  brick-layer's  charge  for 
"190  days  work,"  and  a  physician's  charge  of  "13  dollars  for  medi- 
cine and  attendance  in  curing  the  hooping-cough"  have  been  rejected 
as  too  general  and  indefinite.  It  has  been  said  that  this  is  a  matter 
which  must  reside  very  much  in  the  discretion  of  the  judge,  to  be 
exercised  according  to  the  nature  of  the  subject,  and  its  susceptibility 
of  being  precisely  charged.  See  the  cases  collected..  2  Cowen  & 
Hill's  Phil.  Ev.  699;  Greenl.  Ev.  141.  If  the  charge  be  for  labor, 
r.nd  it  be  a  continuing  service  for  three  or  four  days,  there  seems 
to  be  no  very  cogent  reason  why  it  may  not  form  the  subject  matter 
of  a  single  charge.  On  the  other  hand,  if  it  continue  for  months, 
there  is  no  reason,  if  the  party  relies  upon  his  book,  why  he  should 
not  make  his  charges  from  week  to  week,  or  in  other  limited  terms. 

Upon  the  principles  thus  stated,  it  is  apparent  that  some  of  the 
charges  in  the  plaintiff's  account  are  not  such  as  can  be  substantiated 
by  his  book  and  suppletory  oath.  Not  having  the  original  book  be- 
fore us,  we  have  merely  laid  down  general  rules  applicable  to*  the 
case.     Something  may  depend  upon  its  appearance. 


Account  Book  Entries  327 

The  rule  does  not  extend  so  far  as  to  authorize  the  use  of  his  book, 
by  a  party,  to  curtail  or  defend  the  claims  of  other  parties  against 
him. 

1%  is  not  a  sufficient  objection  to  the  introduction  of  the  book  and 
oath  as  evidence,  that  the  subject-matter  of  the  entry  may  have  been 
done,  delivered,  or  received,  under  a  special  contract.  Such  entries 
are  proof  of  the  use  of  anything  hired  and  returned,  respecting  which 
there  is  often  a  special  contract  for  time  and  price. 

New  trial  granted  on  another  ground. 


CHATEAUGAY  IRON  CO.  v.  BLAKE. 
18/  U.  S.  476.    (1891) 

Brewer,  J.  After  stating  the  case,  delivered  the  opinion  of  the 
court. 

The  question  in  this  case  is  whether  or  not  the  plaintiff  fully  per- 
formed his  contract  of  March  26,  1886. 

The  first  matter  we  notice  is  the  alleged  error  in  the  testimony  of 
Charles  S.  Brown,  who  from  certain  account  books  which  he  pre- 
sented, was  permitted  to  testify  as  to  the  actual  working  of  the  plant 
between  October  18  and  November  7,  giving  in  that  testimony  the 
actual  hours  the  plant  was  working,  the  number  of  tons  crushed,  the 
hours  of  delay,  and  the  causes  therefor.  This  witness  was  sent  by 
Mr.  Blake  to  superintend  the  erection  of  the  plant,  to  watch  its  work- 
ings when  completed  and  to  make  any  needed  repairs,  improvements 
or  changes.  At  his  suggestion,  after  the  plant  commenced  work,  the 
defendant's  superintendent  directed  the  foremen  of  the  mill  to  keep 
these  books.  The  foremen,  of  whom  there  were  four,  generally  made 
the  entries  on  the  books,  though  sometimes  Brown  did  the  writing  at 
their  dictation.  The  entries  were  made  daily;  at  least,  that  was  the 
intention  and  the  general  practice.  The  amount  of  ore  crushed,  as 
disclosed  by  these  books,  corresponded  within  a  few  tons  with  the 
amount  testified  to  by  the  officers  of  the  defendant  company.  Brown, 
himself,  was  present  at  the  mill  most  of  the  time  during  the  day,  and 
had  a  general  knowledge  of  the  accuracy  of  these  entries  so  far  as 
respects  the  work  during  that  time.  We  think  the  testimony  was  com- 
petent. The  books  were  kept  by  the  direction  of  the  defendant's 
superintendent,   and  the  entries  made  by  its   foremen.     Thpy  were 


328  Cases  on  Evidence 

intended  to  be,  and  in  fact  generally  were,  contemporaneous  with  the 
matters  stated;  and  their  substantial  accuracy  is  corroborated  by  the 
personal  knowledge  of  the  witness,  and  the  near  coincidence  of  the 
general  result  with  that  vouched  for  by  the  defendant.  They  may 
not  have  been  account  books  of  the  defendant,  in  the  technical  sense 
of  the  term,  such  as  are  generally  admissible  against  a  party,  but 
they  were  memoranda  made  under  the  direction  of  the  defendant 
•for  the  purpose  of  preserving  a  record  of  certain  facts,  and  imder 
such  circumstances  as  are  worthy  of  a  measure  of  credence  as  against 
it 

Affirmed. 


ROBINSON  V.  SMITH. 
Ill  Mo.  205.     (1892) 


McFarlanE,  J.  Plaintiffs  are  bankers  and  sued  the  defendant 
before  a  justice  of  the  peace  for  an  alleged  overdraft  of  $50. 

The  case  was  taken  by  appeal  to  the  Circuit  Court  when  upon  a 
trial  the  defendant  recovered  judgment,  and  plaintiffs  appealed  to  the 
Kansas  City  Court  of  Appeals. 

Upon  a  hearing  in  that  court.  Smith,  P.  J.,  wrote  an  opinion,  re- 
versing the  judgment  of  the  Circuit  Court,  and  the  appeal  was  cer- 
tified to  this  court,  the  opinion  being  deemed  in  conflict  with  decisions 
of  the  St.  Louis  Court  of  Appeals. 

At  the  trial  of  the  case  plaintiffs  offered  to  introduce  in  evidence 
their  ledger,  cash  book  and  balance  book  kept  in  the  transaction  of 
their  business  as  bankers,  and  showing  the  transaction  with  the  de- 
fendant, and  offered  to  prove  that  they  were  accurately  kept,  and 
that  the  entries  were  made  and  the  books  written  up  each  day  from 
the  checks  of  the  customers  and  tickets  of  the  teller,  and  that  the 
books  were  balanced  each  day  to  verify  their  accuracy.  These  offers 
were  refused  and  the  books  excluded.  This  ruling  of  the  court  is 
the  only  error  assigned  here. 

Judge  Smith  in  his  opinion  says:  "Upon  the  long  and  well-recog- 
nized rule  that  the  book  entries,  made  by  a  party  himself,  or  by  his 
clerk,  in  the  usual  course  of  his  business,  being  contemporaneous  with 
the  fact,  and  part  of  the  res  gestae,  are  admissible  in  evidence,  I  think 
the  offer  of  evidence  made  by  the  plaintiffs  should  not  have  been 


Account  Book  Entries  329 

rejected.**  Since  this  opinion  the  whole  question  has  been  care- 
fully considered  by  this  court,  the  decisions  in  this  state  reviewed, 
and  in  an  elaborate  opinion  by  Black,  J.,  the  same  conclusion  was 
reached  as  that  arrived  at  by  the  Court  of  Appeals.  Anchor  Milling 
Co.  V.  Walsh,  108  Mo.  277. 

The  court  committed  error  in  refusing  to  admit  in  evidence  the 
books  offered.    Judgment  of  Kansas  City  Court  of  Appeals  affirmed. 

All  concur. 


KEITH  et  al.  v.  KIBBE. 
10  Cush.  (Mass.)  55.     (1852) 

Assumpsit  for  the  price  of  a  quantity  of  timber  sold  by  the  plaintiffs 
to  the  defendant.  The  trial  was  before  Mellen,  J.  in  the  court  of 
common  pleas  and  the  defendant  admitted  the  delivery  by  the  plain- 
tiffs of  the  timber  sued  for,  and  that  it  was  used  in  a  dweUing-house 
erecting  for  him,  but  contended  that  the  same  was  sold  to  one  Rollins, 
a  contractor,  who  had  agreed  to  furnish  the  materials  and  build  said 
house.  The  plaintiffs  called  their  clerk,  who  produced  their  books  of 
account,  and  swore  to  the  entries  therein  made  by  himself,  charging 
said  timber  to  the  defendant.  The  defendant  objected  to  these  entries 
as  incompetent  evidence  of  the  fact  to  whom  the  credit  was  orig- 
inally given,  but  the  presiding  judge  admitted  the  evidence.  The  ver- 
dict was  for  the  plaintiffs,  and  the  defendant  excepted.  The  case  was 
argued  in  this  court,  as  of  the  September  term,  185 1. 

By  the  Court.  The  day-book  of  the  plaintiffs  was  not  competent 
for  the  purpose  for  which  it  was  allowed  to  be  introduced.  The  con- 
troversy was  not  as  to  the  items  or  time  of  delivery  of  the  timber. 
It  was  conceded  that  the  amount  was  furnished  by  the  plaintiffs,  and 
was  used  in  building  the  defendant. s  house.  But  the  defendant  denied 
that  he  was  the  purchaser,  and  insisted  that  the  same  was  sold  by  the 
plaintiffs  to  one  Rollins,  the  contractor  for  building  the  house.  It 
was  a  mere  question  as  to  the  party  who  was  the  debtor  to  the  plain- 
tiffs for  these  articles.  And  in  this  aspect  of  the  question  the 
plaintiffs  could  not  properly  be  allowed  to  introduce  their  own  charges 
for  the  timber  made  against  the  defendant  as  the  debtor,  to  aid  in 
sustaining  their  case.  The  case  of  Ball  v.  Gates,  12  Met.  491,  cited 
by  the  plaintiffs,  differs  materially  from  the  present,  as  there  was 


330  Cases  on  Evidence 

other  evidence  relied  upon  to  charge  the  defendant  as  the  debtor,  and 
the  book  was  offered  to  show  merely  the  items  delivered. 

Exceptions  sustained;  verdict  set  aside. 


ANCHOR  MILLING  CO.  v.  WALSH. 
io8  Mo.  ^77.     (i8pi) 

Black,  J.  This  was  an  action  to  recover  over  payments  alleged 
to  have  been  made  by  the  plaintiff  to  the  defendant.  A  trial  was  had 
before  a  jury,  which  resulted  in  a  verdict  and  judgment  for  the 
defendant.  The  St.  Louis  Court  of  Appeals,  to  which  the  cause  was 
appealed,  reversed  the  judgment  and  remanded  the  cause  for  error 
in  the  instructions.  That  court,  however,  sustained  the  ruling  of  the 
trial  court  in  excluding  a  shipping  book  offered  in  evidence  by  the 
plaintiff.  On  this  question  one  of  the  judges  deemed  the  opinion 
contrary  to  Smith  v.  Beattie,  57  Mo.  281,  and  for  this  reason  the  cause 
was  then  certified  to  this  court. 

Defendant  had  a  contract  with  plaintiff  whereby  he  was  to  receive 
a  specified  price  for  hauling  wheat  and  flour  to  the  mill  and  a  speci- 
fied price  per  barrel  and  sack  for  hauling  flour  and  other  mill  products 
from  the  mill  to  different  points  in  St.  Louis  and  East  St.  Louis. 
Books  were  kept  at  the  plaintiff's  warehouse,  which  was  about  a  block 
distant  from  the  mill,  showing  the  wheat  and  flour  received  and  ship- 
ments made,  and  these  books  disclosed  the  amount  of  hauling  done 
by  the  defendant,  A  Mr.  Timmons,  who  was  one  of  the  plaintiff's 
clerks  at  the  warehouse,  made  up  a  statement  on  a  slip  of  paper  at 
the  end  of  each  week,  showing  the  amount  due  the  defendant.  The 
plaintiff's  cashier  at  the  mill  paid  the  defendant  the  amount  due  as 
disclosed  by  these  statements.  The  business  proceeded  in  this  way 
from  the  first  to  the  latter  part  of  1883,  when  the  plaintiff  caused  the 
books  to  be  examined  and  concluded  that  payments  had  been  made 
to  defendant  largely  in  excess  of  what  he  had  earned.  Timmons  and 
defendant  left  the  employ  of  the  plaintiff,  and  a  criminal  prosecution 
and  this  suit  followed. 

The  shipping  book,  offered  in  evidence  by  the  plaintiff  and  excluded 
by  the  court,  was  made  up  and  kept  in  the  following  manner :  Orders 
were  sent  from  the  office  at  the  mill  to  the  warehouse  to  send  desig- 


Account  Book  Entrie;s  331 

nated  amounts  of  flour,  etc.,  to  designated  places.  The  orders  were 
then  entered  in  the  shipping  book  by  Timmons,  the  shipping  clerk 
or  by  Mr.  Warren,  who  had  a  general  supervision  over  all  the  busi- 
ness at  the  warehouse.  The  orders  were  then  copied  into  a  small 
handbook  for  the  use  of  the  foreman,  who  delivered  the  articles  to 
defendant's  teamsters,  made  a  note  of  the  fact  and  returned  the  book 
to  the  clerk,  who  made  entries  on  the  shipping  book,  showing,  among 
other  things,  the  delivery  of  the  article  to  the  defendant.  Mr.  Warren 
says  he  always  compared  the  orders  with  the  book  when  made  up,  and 
then  returned  the  orders  to  the  mill  office;  that  he  knew  the  flour 
and  other  mill  products  were  delivered  to  defendant  from  the  infor- 
mation received  from  the  small  book,  and  some  cases  from  personal 
observation.  These  returned  orders  were  lost  or  destroyed.  Tim- 
mons, the  shipping  clerk,  was  not  called  as  a  witness.  With  this 
preliminary  proof  the  plaintiff  offered  in  evidence  the  shipping  book, 
but  the  court  excluded  it. 

Since  a  party  may  testify  in  his  own  favor,  it  must  be  conceded 
that  he,  as  well  as  his  clerk  or  bookkeeper,  may  refresh  his  memory 
from  entries  made  by  him  or  under  his  eye,  and  then  testify  as  to  the 
fact  with  his  memory  thus  refreshed.  Now  in  cases  of  an  account 
composed  of  many  items,  all  this  means  nothing  more  than  reading 
the  book  in  evidence.  This  we  all  know  from  daily  experience  in 
the  trial  courts.  It  is  out  of  all  reason  to  say  that  a  merchant  or  his 
clerks  can  recall  each  item  of  the  account,  and  a  fair-minded  witness 
will  generally  decline  the  attempt.  Account  books  are  admitted  in 
evidence  for  the  person  by  whom  they  are  kept  when  the  entries 
are  made  at  the  time  or  nearly  so  of  doing  the  principal  fact,  because 
entries  made  under  such  circumstances  constitute  a  part  of  the  res 
gestae.  An  entry  thus  made  is  more  than  a  mere  declaration  of  the 
party.  It  is  a  verbal  act  following  the  principal  fact  in  the  orderly 
conduct  of  business.  Such  is  certainly  the  custom  and  course  of 
business  at  the  present  day.  We,  therefore,  conclude  that  an  account 
book  of  original  entries,  fair  on  its  face,  and  shown  to  have  been 
kept  in  its  usual  course  of  business,  is  evidence,  even  in  favor  of 
the  party  by  whom  they  are  kept.  It  follows  that  the  shipping  book 
should  have  been  received  in  evidence. 

As  the  Court  of  Appeals  reversed  the  judgment  and  remanded  the 
cause  for  other  errors,  the  judgment  of  that  court  is  affirmed. 
Barclay,  J.,  absent,  the  other  judges  concur. 


332  Cases  on  Evidence 

RICHARDSON  v.  EMERY  et  al. 
23  Vt.  220.     (1831) 

Assumpsit  on  an  account  annexed  to  the  writ. 

The  plaintiff  testified  that  he  was  engaged  in  buying  lots  of  wood 
and  selling  them  out  again;  that  in  some  of  this  business  he  was  in 
partnership  with  Mr.  Sawyer,  and  that  he  did  a  small  business  on 
his  own  account;  that  he  kept  different  books,  like  that  produced, 
for  different  lots  of  wood;  that  this  book  contained  an  account  of 
the  wood  sold  the  defendants,  and  of  the  Colt  lot,  bought  by  him 
and  Sawyer;  that  he  kept  a  separate  memorandum  book  for  each  lot 
of  wood;  that  these  different  books  taken  together  would  contain  a 
history  of  his  business.  He  offered  to  produce  all  these  books,  and 
also  a  book  into  which  he  said  these  accounts  were  carried  in  August, 
1848.  There  was  nothing  in  the  book  that  showed  of  whom  the  plain- 
tiff had  the  wood  charged  to  the  defendants,  or  to  what  lot  it  belonged. 

The  jury  found  a  verdict  for  the  defendant,  Emery,  which  the 
plaintiff  moved  to  set  aside  for  the  ruling  of  the  court  rejecting  his 
book. 

Gilchrist,  C.  J.  The  ruling  of  the  court,  in  this  case,  rejecting 
the  book  was  correct.  There  is  no  principle  on  which  such  extremely 
loose  papers  as  those  offered  by  the  plaintiff  are  admissible  in  evi- 
dence, as  a  book  of  accounts.  They  do  not  possess  that  intrinsic 
evidence  of  their  truth,  without  which  the  admission  of  account 
books  is  extremely  dangerous  to  the  cause  of  justice. 

In  the  first  place,  the  charges  in  the  hand-writing  of  the  party 
must  appear  in  such  a  state  that  they  may  be  presumed  to  have  been 
his  daily  minutes  of  his  transactions  and  business.  Eastman  v.  Moul- 
ton,  3  N.  H.  156.  The  papers  offered  to  substantiate  this  claim  are 
confessedly  not  such  minutes.  The  plaintiff  was  engaged  in  buying 
and  selling  lots  of  wood,  and  he  kept  different  books  for  the  different 
lots.  He  did  not  keep  one  book  of  original  entries  on  which  his 
daily  charges  were  made,  so  as  to  afford  some  security  against  in- 
terpolations, but  the  matters  relating  to  each  transaction  were  sepa- 
rately recorded.  It  would  be  much  easier  to  manufacture  a  book 
containing  the  plaintiff's  statement  of  a  single  transaction,  than  a 
regular  account  book  containing  the  minutes  of  his  business  from  day 
to  day. 

The  charges,  with  the  single  exception  of  that  against  the  defend- 
ants, purport  to  be  only  for  money  received  and  for  money  paid.    This 


Account  Book  Entries  333 

does  not  accord  with  our  experience  of  the  nature  of  daily  transac- 
tions between  man  and  man.  Ordinarily  business  does  not  consist 
so  exclusively  of  such  subjects,  and  this  is  a  matter  proper  to  be  con- 
sidered in  connection  with  others,  in  determining  whether  the  book 
can  be  considered  a  daily  record  of  business  transactions.  We  cannot 
presume  that  the  business  of  the  plaintiff  was  so  entirely  of  this 
character. 

Judgment  for  the  defendant. 


CORR  V.  SELLERS. 
100  Pa.  St.  i6p.     (1882) 


Assumpsit,  by  William  Sellers  &  Co.  against  Bernard  Corr  to  re- 
cover the  price  of  certain  repairs  to  a  brick  machine. 

On  the  trial  before  Thayer,  P.  J.,  plaintiffs  called  their  sales  clerk, 
by  whom  their  sales  book  or  book  of  original  entry  was  identified 
wherein  was  contained  the  following  charge : 

"B.  Corr,  Dr." 

"July  13th,  1880.     To  repairing  brick  machine,  $1,932.76." 

Plaintiffs  then  offered  the  book  in  evidence.  Objected  to  by  the 
defendant  because  the  charge  was  a  lumping  charge,  and  did  not  par- 
ticularize what  the  repairing  consisted  of,  and  because  it  was  im- 
possible for  the  defendant  to  know  from  said  charge  what  amount 
of  material  had  been  furnished  or  work  or  labor  done  in  making  said 
repairs,  or  whether  the  price  was  a  reasonable  and  proper  charge. 
Objection  overruled.     Evidence  admitted.     Exception. 

Verdict  and  judgment  for  the  plaintiffs,  whereupon  the  defendant 
took  this  writ,  assigning  for  error  the  admission  in  evidence  of  the 
above  book  entry. 

Mercur,  J.  The  specifications  of  error  present  a  single  question. 
That  is,  whether  the  book  of  original  entries  was  admissible  for  the 
purpose  offered?  It  was  admitted  under  objection,  to  prove  the  fol- 
lowing item: 

"B.  Corr,  Dr."  i 

"July  13th   1880.     To  repairing  brick  machine  $1,932.76." 

The  first  objection  made  to  its  admission  was  "because  it  was  a  lump- 
ing charge  and  did  not  particularize  what  the  repairing  consisted  of, 
and  it  was  impossible  for  the  defendant  to  know  from  the  said  charge, 


334  Cases  on  Evidence 

what  amount  of  materials  had  been  furnished  or  work  or  labor  done 
in  making  the  repairs,  or  whether  the  price  was  a  reasonable  and 
proper  charge. 

The  general  rule  is  well  established,  that  books  of  original  entries, 
properly  proved,  are  evidence  of  work  and  labor  performed,  and  of 
goods  sold  and  delivered.  Yet  to  this  general  rule  several  exceptions 
have  been  recognized.  Among  them  that  the  invoice-book  of  an 
agent  is  not  evidence  of  the  sale  and  delivery  of  goods :  Cooper  v. 
Morrel,  4  Yeates  341.  Nor  of  goods  to  be  delivered  at  a  future 
day :  Rheem  v.  Snodgrass,  2  Grant  379.  Nor  of  work  done,  in  an 
action  for  part  performance  under  a  special  contract :  Alexander  v. 
Hoffman,  5  W.  &  S.  382;  Eshleman  v.  Harnish,  26  P.  F.  Smith,  97. 
Nor  of  the  sale  of  a  horse  not  in  the  course  of  the  parties'  business: 
Shoemaker  v.  Kellog,  i  Jones  310.  Books  of  original  entry  were 
formerly  received  in  evidence  from  necessity.  Where  the  transaction 
from  its  nature  admits  of  more  satisfactory  proof,  they  should  not  be 
received.  Id.  Now,  since  the  parties  are  competent  witnesses  in  their 
own  behalf,  great  care  should  be  taken  that  there  be  no  enlargement 
of  the  rule. 

In  several  of  the  states  by  statute,  books  are  competent  evidence 
to  prove  an  account  not  exceeding  a  sum  specified.  We  have  no 
statute  on  the  subject,  and  so  far  as  I  am  aware,  this  court  has 
never  stated  any  specific  sum  to  be  in  excess  of  the  amount  which 
may  thus  be  proved.  This  may  arise  from  the  fact  that  a  book  has 
never  been  offered  in  evidence  here  to  prove  an  item  of  very  large 
amount.  We  will  not  now  designate  the  maximum  sum  for  which  a 
book  may  be  received  in  evidence.  We  think,  however,  there  must 
be  some  limit.  Much  more  depends  on  the  nature  and  character  of 
the  subject-matter  of  tlie  item,  and  on  the  evidence  outside  of  the 
book,  which  naturally  exists  to  prove  the  item.  In  Leighton  v.  Man- 
son,  14  Maine,  208,  the  book  of  original  entries  was  held  incompetent 
to  prove  an  account  of  two  charges  for  beef,  bearing  date  the  same 
day,  one  for  355  pounds,  the  other  for  360  pounds.  The  exclusion 
appears  to  have  been  sustained  by  reason  of  the  articles  having  been 
of  such  bulk  and  weight  that  they  were  not  delivered  without  as- 
sistance, and  therefore,  better  evidence  than  the  book  was  attainable. 
In  Thomas  v.-  Doyott,  i  Nott  &  McCord,  186,  it  was  declared  that 
this  species  of  evidence  ought  not  to  be  allowed,  where  it  is  in  the 
power  of  the  party  to  produce  other  evidence.  Hence,  in  Pelzer  v. 
Cranston,  2  McCord,  328,  it  was  held  that  a  school-master's  books, 
though  regularly  kept,  were  not  evidence  to  prove  his  account,  as  he 


Account  Book  Entries  335 

must  have  had  many  witnesses  at  command,  and  the  evidence  of  his 
books  was,  therefore,  not  necessary. 

The  rejection  of  the  book  to  prove  the  sale  of  the  horse,  in  Shoe- 
maker V.  Kellog,  supra,  appears  to  have  been  ruled  chiefly  on  the 
ground  that  from  the  nature  of  the  transaction,  there  must  have  ex- 
isted other  and  better  evidence  of  the  sale. 

The  charges  must  be  reasonably  specific  and  particular.  This  is  the 
more  necessary,  inasmuch,  as  when  received,  the  books  are  prima  facie 
evidence,  both  of  the  item  charged,  and  the  price  and  value  carried 
out:  Ducoign  v.  Schreppel,  i  Yeates  347;  Baumgardner  v.  Burnham, 
12  Morris  88.  A  general  charge  for  work  and  labor  of  a  mechanic, 
without  any  specification  but  that  of  time  cannot  be  supported  by 
evidence  of  an  entry  on  the  book.  Therefore,  a  bricklayer's  charge  of 
"190  days  work"  was  rejected:  Lynch's  Adm'rs  v.  Petriel  Nott  & 
McCord  130.  So  a  charge  of  "13  dollars  for  medicine  and  attendance 
on  one  of  the  general's  daughters,  in  curing  the  whooping  cough," 
was  rejected  as  too  indefinite:  Hughes  v.  Hampton,  2  Const.  Rep. 
(O.  S.)  745.  An  item  in  an  account  of  "seven  gold  watches, 
$308,"  was  held  insufficient :    Bustin  v.  Rogers,  1 1  Cush.  346. 

In  the  present  case  the  objection  was  special  and  specific.  It  was 
to  the  lumping  form  of  the  charge.  There  was  nothing  therein  to 
indicate  the  number  of  days,  weeks  or  months  of  labor,  claimed  to 
have  been  performed  on  the  machine,  nor  the  price  charged  for  any 
of  them ;  nothing  to  show  the  kind,  quantity,  or  value  of  the  materials 
furnished,  nor  the  price  charged  therefor.  No  item  is  given  whereby 
the  value  of  anything  which  entered  into  the  repairs  can  be  ascer- 
tained, and  its  correctness  be  tested.  What  share  or  proportion  of 
the  aggregate  sum  charged  is  for  work  or  what  for  materials  if  any, 
is  not  stated.  A  lumping  charge  of  nearly  two  thousand  dollars  was 
thrown  into  the  jury  box,  and  the  opposite  party,  without  proof  and 
without  information  as  to  the  items  of  which  it  was  composed,  re- 
quired to  defend  against  it. 

We  think  the  learned  judge  erred  in  admitting  his  book  entry  as 
evidence  to  charge  the  plaintiff  in  error  with  the  amount  thereof.  The 
error  was  not  cured  by  the  character  of  the  evidence  afterward  given; 
something  more  specific  is  necessary  to  prove  the  claim. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


336  Cases  on  Evidence 

WELLS  V.  HAYS. 
Pi  S.  C.  167.    (1912) 

Hydrick,  J.  This  action  was  brought  to  recover  the  balance  due 
on  a  due  bill  for  $1,138.53,  dated  March  29,  1904,  and  given  to  plain- 
tiff by  R.  M.  Hays  &  Brother,  a  mercantile  firm  composed  of  R.  M. 
and  A.  G.  Hays,  both  of  whom  died  before  the  commencement  of  the 
action.  The  action  was  brought  against  defendant  alone,  because  she 
assumed  payment  of  the  due  bill. 

Plaintiff  admits  one  payment  of  $200.00  which  was  credited  on  the 
due  bill.  Defendant  pleads  four  others,  which,  with  that  admitted, 
aggregate  $964.67,  leaving  a  balance  of  only  $319.00  for  which  amount 
the  jury  found  a  verdict  for  plaintiff.  From  the  judgment  entered 
on  the  verdict,  the  plaintiff  appealed. 

Three  of  the  alleged  payments,  including  the  one  admitted  by  plain- 
tiff, were  checks  of  R.  M.  Hays  &  Brother,  payable  to  the  order 
of  J.  W.  Wells  the  husband  of  the  plaintiff  and  endorsed  by  him. 
There  was  nothing  on  the  checks  to  indicate  for  what  purpose  they 
were  given;  but  there  was  a  memorandum  on  the  stub  of  each  in 
the  check  book,  and  also  in  the  cash  book  of  R.  M.  Hays  &  Brother, 
to  the  effect  that  they  were  intended  as  payments  to  Mrs.  Wells. 
One  of  the  checks  was  payable  to  the  order  of  W.  J.  Snead  Lumber 
G^mpany,  and  there  was  a  similar  memorandum  on  the  check  stub 
and  in  the  cash  book.  One  of  the  payments  alleged  was  an  item 
of  $150.00  charged  on  the  cash  book  to  Mrs.  Wells  as  cash  paid  to 
her.  In  the  ledger  account  of  plaintiff  on  the  firm  books,  she  is  cred- 
ited with  $1,138.53,  as  of  the  date  of  the  due  bill,  and  debited  with 
the  several  amounts  claimed  by  the  defendant  as  payments  thereon, 
at  the  respective  dates  thereof.  These  amounts  were  carried  on  the 
ledger  by  the  bookkeeper  from  the  check  stubs  and  the  cash  book. 

The  question  upon  which  the  appeal  must  turn  is:  Did  the  court 
err  in  admitting  the  books  of  account  of  R.  M.  Hays  &  Brother  and 
their  check  book  stubs,  containing  the  memoranda  thereon,  as  evi- 
dence of  the  alleged  payments  to  the  plaintiff.  The  decisions  of  this 
court  clearly  answer  that  question  in  the  affirmative. 

From  time  immemorial,  the  books  of  merchants,  shopkeepers, 
tradesmen,  and  others  whose  business  or  occupation  necessitates  the 
keeping  of  books,  have  been  admitted  in  the  courts  of  this  State  to 
prove  accounts  for  goods  sold  and  delivered,  services  rendered,  work 
and  labor  done,  and  materials  furnished;  but  this  court  has  uniformly 


Account  Book  Entries  337 

held  that  books  of  account  or  private  memoranda  are  inadmissible  for 
the  purpose  of  proving  special  contracts,  such  as  are  not  shown  by 
or  to  be  inferred  from  the  entries  alone,  regularly  and  properly  made 
in  the  usual  course  of  business  in  books  of  one  of  the  classes  above 
mentioned. 

As  a  rule,  the  authorities  are  against  the  admission  of  books  of 
account  as  evidence  to  prove  such  cash  transactions  as  money  loaned 
or  payments  made  on  notes,  bonds  or  other  obligations.  Williams  v. 
Gregg,  2  Strob,  Eq.  315;  Wigmore,  sec.  1539;  9  A.  &  Enc.  L.  (2nd)  • 
930-1;  Lewis  V.  England,  2  L.  R.  A.  (N.  S.)  401,  and  note.  To  this 
general  rule,  some  authorities  make  an  exception  of  bank  books  kept 
in  the  usual  course  of  business,  and  account  books  generally  where 
the  cash  items  appear  in  the  general  course  of  accounts  as  part  of  the 
ordinary  transactions  between  the  parties.  Lever  v.  Lever,  2  Hill 
Ch.  158;  Sinclair  v.  Price,  lb.  160.  There  may  be  other  exceptions 
to  the  rule;  but  as  this  case  does  not  fall  within  any  of  them,  we  ex- 
press no  opinion  as  to  what  exceptions  may  be  made  to  the  general 
rule,  or  what  circumstances  of  necessity  would  warrant  the  making 
of  them.  The  point  decided  does  not  conflict  with  the  well  settled 
rule  that  such  entries  or  memoranda  may  be  referred  to  by  the  per- 
son who  made  them  for  the  purpose  of  refreshing  his  memory,  and 
thereby  enabling  him  to  testify  to  the  transactions  so  recorded,  if  he 
is  otherwise  competent. 

Reversed. 


PRATT  V.  WHITE. 
IS2  Mass.  477.     (1882) 


Contract  upon  an  account  annexed  for  goods  sold  and  delivered  to 
the  defendant  by  the  plaintiff's  intestate.     Answer,  a  general  denial. 

At  the  trial  in  the  Superior  Court,  before  Putnam,  J.,  the  plaintiff 
offered  in  evidence  the  book  of  original  entries  kept  by  his  intestate, 
with  his  own  oath  and  that  of  the  intestate's  clerk.  The  defendant; 
objected  to  its  admissibility,  on  the  ground  that  no  measure,  weight 
or  quantity  was  given  in  connection  with  the  several  items  charged. 
The  judge  ruled  that  this  did  not  make  the  book  incompetent  evi- 
dence to  be  submitted  to  the  jury  and  admitted  it. 


338  •  Cases  on  Evidence 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions  of  which  the  book  was  made  a  part. 

Devens,  J.  The  admission  of  the  books  of  account  of  a  party  to 
prove  items  of  work  done  and  goods  delivered,  when  supported  by 
his  own  oath,  or,  if  he  is  deceased,  that  of  his  administrator  or  execu- 
tor, has  long  been  permitted  in  this  State,  and  under  various  restric- 
tions, some  created  by  statute,  in  all  the  States  of  the  Union.  It  has 
been  sanctioned  as  an  exception  to  the  general  rule  of  law  as  it  for- 
merly existed,  that  a  party  should  not  be  a  witness  in  his  own  case, 
and  from  supposed  necessity,  in  order  to  prevent  a  failure  of  justice, 
that  he  shall  be  allowed  to  produce  the  record  of  his  daily  transactions, 
to  many  of  which,  on  account  of  their  variety  and  minuteness,  it  can- 
not be  expected  there  will  be  witnesses. 

It  is  for  the  court  to  decide  upon  the  admissibility  of  the  book 
offered,  although  the  weight  to  be  given  to  it  afterwards  must  be 
largely  a  question  for  the  jury  in  connection  with  its  appearance,  the 
manner  in  which  it  is  kept,  and  the  other  evidence  in  the  case.  It  must 
appear  to  have  been  honestly  kept,  and  not  intentionally  erased  or 
altered,  and  to  have  been  the  record  of  the  daily  business  of  the  party, 
made  for  the  purpose  of  establishing  a  charge  against  another.  Neces- 
sarily, regard  is  to  be  had  to  the  education  of  the  party,  his  methods 
and  knowledge  of  business,  &c.,  in  deciding  this  question.  Cogswell 
V.  Dolliver,  2  Mass.  217.     Prince  v.  Smith,  4  Mass.  454. 

The  decision  of  the  court  to  admit  the  book  is  final  and  conclusive, 
unless  from  its  character,  or  from  that  which  was  sought  to  be  proved 
by  it,  it  could  not  have  been  admitted  even  if  it  met  those  tests.  Al- 
though somewhat  irregularly  made  part  of  the  exceptions  to  be  ex- 
amined by  the  court,  the  book  has  not  been  produced  by  the  defendant 
for  our  inspection.  It  appears  that  measure,  weight  and  quantity 
were  not  given  in  connection  with  the  items  of  goods  charged,  but 
for  this  reason  we  are  not  prepared  to  say  that  it  was  inadmissible. 
If  the  book  contain  the  record  of  the  party,  daily  transactions  made 
for  the  purpose  of  a  charge,  it  may  be  admitted,  even  if  deficient  in 
many  respects.  It  does  not  follow  that,  before  a  plaintiff  can  fairly 
ask  a  verdict,  he  may  not  be  compelled  to  supply  deficiencies  in  the 
evidence  his  book  affords.  This  bill  of  exceptions  does  not  show 
that  other  evidence  was  not  introduced. 

A  time  book  which  has  only  the  name  of  the  party  and  marks  under 
particular  dates  has  been  admitted.  Mathes  v.  Robinson,  8  Met.  269. 
Upon  the  same  principle,  marks  on  a  shingle  or  upon  a  notched  stick 
have  been  admitted.    Kendall  v.  Field,  14  Maine,  30.     i  Greenl.  Ev. 


Account  Book  Entrie;s  339 

sees.  118, 119.  Yet,  without  additional  evidence,  these  would  afford  but 
ineomplete  proof  of  a  elaim.  In  Hooper  v.  Taylor,  39  Maine,  224, 
a  book  similar  to  the  one  here  in  question  in  omitting  the  weight  and 
quantity  of  articles  was  admitted  with  but  little  discussion. 

There  would  seem  to  be  no  reason  why  a  delivery  of  specific  articles 
might  not  be  shown  by  a  book  of  accounts,  even  if  more  evidence 
were  needed  to  show  the  amount  which  the  plaintiff  was  entitled  to 
recover.  It  is  easy  to  imagine  many  facts  in  connection  with  which 
such  charges  might  be  very  important.  We  have  no  reason  to  sup- 
pose more  weight  was  given  to  them  than  that  to  which  they  were 
fairly  entitled,  and  we  must  presume  that  the  book  was  submitted  to 
the  jury  under  all  proper  instructions. 

Exceptions  overruled. 


SMITH  v.  RENTZ. 
iSi  N.  Y.  i6p.     (1892) 


Andrews,  J.  The  action  was  brought  to  recover  moneys  advanced 
to  and  paid  out  by  the  plaintiff's  testator  for  the  defendant.  The 
complaint  alleges  that  from  1882  to  1887  the  testator  was  the  banker 
and  general  business  agent  for  the  defendant,  and  that  during  said  years 
the  defendant  from  time  to  time  deposited  moneys  with  the  testator  and 
the  latter,  as  requested  by  the  defendant,  from  her  funds  in  his  hands, 
and  when  these  were  insufficient,  from  his  own,  paid  her  different 
sums  in  cash,  and  also  paid  taxes  and  tradesmen's  bills  for  which 
she  was  liable,  and  that  there  was  a  balance  due  the  testator  on  ac- 
count of  such  payment  of  $3,744.75,  which  the  plaintiff  claimed  to 
recover.  The  answer  contained  a  general  denial  and  interposed 
special  defenses.  On  the  trial  the  plaintiff  offered  in  evidence  the 
ledger  kept  by  the  testator  containing  the  items  of  the  alleged  ac- 
count. It  was  admitted  against  the  objection  of  the  defendant.  Evi- 
dence was  given  on  the  part  of  the  plaintiff  independently  of  the 
ledger,  tending  to  establish  many  of  the  items  of  the  account,  but  a 
considerable  number  of  the  items  for  which  recovery  was  had  are 
supported  by  the  ledger  alone.  If  the  ledger  was  improperly  ad- 
mitted in  evidence  the  judgment  must  be  reversed. 

The  production  of  books  and  papers  on  notice  is  the  voluntary  act 
of  the  party.    If  he  refuses,  it  may,  as  is  claimed,  authorize  the  other 


340  Cases  on  Evidence 

party  to  give  secondary  evidence  of  their  contents,  when  the  party 
having  possession  cannot  then  answer  by  producing  them.  But  if 
they  contain  facts  favorable  to  the  other  side,  they  ought  to  be  dis- 
closed, and  if  production  is  refused,  the  party  refusing  may  justly 
incur  the  danger  of  having  secondary  proof  given  of  their  contents. 
The  claim  is  also  made  that  the  books  were  competent  as  original 
evidence  of  the  entries,  under  the  rule  making  books  of  account  in 
certain  cases  evidence  in  favor  of  the  party  keeping  them.  We  think 
there  is  no  foundation  for  this  contention.  The  rule  which  prevails 
in  this  state  (adopted,  it  is  said,  from  the  law  of  Holland),  that 
the  books  of  a  tradesman,  or  other  person  engaged  in  business,  con- 
taining items  of  account,  kept  in  the  ordinary  course  of  book  accounts, 
are  admissible  in  favor  of  the  person  keeping  them,  against  the  party 
against  whom  the  charges  are  made  after  certain  preliminary  facts 
are  shown,  has  no  application  to  the  case  of  books  or  entries  relating 
to  cash  items  or  dealings  between  the  parties.  This  qualification  of 
the  rule  was  recognized  in  the  earliest  decisions  in  this  state  and  has 
been  maintained  by  the  courts  with  general  uniformity,  (Vosburgh 
v.  Thayer,  12  Johns.  461.)  It  stands  upon  clear  reason.  The  rule 
admitting  account-books  of  a  party  in  his  own  favor  in  any  case,  was 
a  departure  from  the  ordinary  rules  of  evidence.  It  was  founded 
upon  a  supposed  necessity  and  was  intended  for  cases  of  small  traders 
who  kept  no  clerks  and  was  confined  to  transaction  in  the  ordinary 
course  of  buying  and  selling  or  the  rendition  of  services.  In  these 
cases  some  protection  against  fraudulent  entries  is  aflForded  in  the 
publicity  which  to  a  greater  or  less  extent  attends  the  manual  transfer 
of  tangible  articles  of  property,  or  the  rendition  of  services,  and  the 
knowledge  which  third  persons  may  have  of  the  transactions  to 
which  the  entries  relate. 

But  the  same  necessity  does  not  exist  in  respect  to  cash  transactions. 
They  are  usually  evidenced  by  notes,  or  writing,  or  vouchers,  in  the 
hands  of  the  party  paying  or  advancing  the  money.  Moreover,  en- 
tries of  cash  transactions  may  be  fabricated  with  much  greater  safety 
and  with  less  chance  of  the  fraud  being  discovered  than  entries  of 
goods  sold  or  delivered,  or  of  services  rendered.  It  would  be  unwise 
to  extend  the  operation  of  the  rule  admitting  a  party's  books  in  evi- 
dence, beyond  its  present  limits,  as  would  be  the  case,  we  think,  if 
the  books  containing  cash  dealings  were  held  to  be  competent.  Parties 
are  now  competent  witnesses  in  their  own  behalf.  A  resort  to  books 
of  account  is  thereby  rendered  unnecessary  in  the  majority  of  cases. 

We  think  the  ledger  was  erroneously  admitted  in   evidence,   and 


Account  Book  Entries  341 

the  judgment  below  should,  therefore,  be  reversed  and  a  new  trial 
ordered. 


SMITH  V.  SMITH. 
J63  N.  Y.  168  (1900) 


Gray,  J.  The  plaintiff  sought  to  recover  a  balance  due  for  coal 
sold  and  delivered  by  him  to  the  defendant.  He  recovered  judgment, 
upon  a  trial  before  a  referee,  and  that  judgment  has  been  unani- 
mously affirmed  by  the  Appellate  Division.  Upon  his  appeal  to  this 
court,  the  defendant  assigns  as  error  a  ruling  of  the  referee,  under 
which  the  plaintiff's  books  of  account  were  admitted  in  evidence. 

Upon  the  trial,  the  plaintiff  testified  to  having  had  business  trans- 
actions with  the  defendant,  in  the  sale  of  coal  to  him,  for  some  time 
past;  that  his  books  of  account  contained  a  correct  statement  of  the 
coal  sold  and  delivered  within  the  dates  in  question  and  that  he,  per- 
sonally, delivered  nearly  all  the  coal  covered  by  the  account.  He  tes- 
tified that  his  wife  kept  his  books  and  made  the  entries  therein  from 
memoranda  furnished  by  him,  as  made  after  the  delivery  of  the  coal. 
She,  also,  testified  to  making  the  entries  in  that  manner  and  that  they 
were  correctly  made.  There  was  evidence  on  his  part,  also,  to  the 
effect  that  a  copy  of  the  account  in  the  books  had  been  acknowledged 
by  the  defendant,  with  an  offer  to  settle  upon  some  rectification  being 
made.  A  witness  for  the  plaintiff  testified  that  he  had  settled  with 
him  by  his  books  for  eight  or  ten  years  and  always  had  found  the 
books  correct.  Being  cross-examined  as  to  that,  he  said:  "I  knew, 
the  accounts  were  correct  simply  because  I  had  confidence  in  him 
and  paid  what  he  asked.  That  is  all  the  reason  I  had  for  saying 
they  were  correct  because  I  had  confidence  in  him.  I  relied  on  his 
honesty  and  not  on  my  recollection  as  to  the  amount  of  coal  I 
ordered."  Another  witness  testified  for  the  plaintiff  that  he  was  a 
bookkeeper  for  a  firm  that  purchased  coal  from  the  plaintiff  on  credit 
and  that  he  had  "settled  with  him  according  to  his  books  and  accord- 
ing to  our  own  four  or  five  times,"  and  "always  found  them  to  be 
correct." 

Upon  this  evidence  the  books  of  account  were  offered  by  the  plain- 
tiff and  the  objection  to  their  admission  was  placed  "on  the  ground 
that  they  are  incompetent;  a  proper  foundation  not  having  been  laid 


342  Cases  on  Evidence 

for  their  being  admitted  as  evidence."  The  objection  was  overruled 
and  the  defendant  excepted.  The  question  is  thus  presented  whether, 
in  the  evidence  which  preceded,  a  foundation  had  been  laid  for  the 
admission  of  the  books  according  to  the  requirements  of  a  rule  of 
evidence  which  should  be  regarded  as  established  since  its  formula- 
tion in  the  case  of  Vosburgh  v.  Thayer  (12  Johns.  461).  It  was 
held  in  that  case  that  books  of  account  ought  not  to  be  admitted 
in  evidence,  "unless  a  foundaion  is  first  laid  for  their  admission,  by 
proving  that  the  party  had  no  clerk,  that  some  of  the  articles  charged 
have  been  delivered,  that  the  books  produced  are  the  account  books 
of  the  party,  and  that  he  keeps  fair  and  honest  accounts,  and  this  by 
those  who  have  dealt  and  settled  with  him."  The  rule,  as  thus  laid 
down,  has  been  since  accepted  as  correct.  (Matter  of  McGoldrick 
v.  Traphagen,  88  N.  Y.  334 ;  Tomlinson  v.  Borst,  30  Barb.  42 ;  Dooley 
v.  Moan,  57  Hun  535.)  Under  these  restrictions  account  books 
become  evidence  for  the  consideration  of  the  tribunal,  with  which 
the  determination  of  the  issues  rests.  As  evidence,  which  is  manufac- 
tured by  the  party,  they  should  be  received  with  caution;  but  that 
is  an  objection  which  goes  to  the  weight  of  the  evidence  and  not  to 
its  admissibility,  which  is  to  be  determined  solely  with  reference  to 
the  foundation  which  has  been  laid  for  it. 

Their  admission  in  evidence  is,  of  course,  not  authoritative  as  to 
their  contents ;  for  the  conclusion  as  to  their  credit  will  depend  upon 
their  appearance,  the  manner  of  their  keeping  and  the  character  of 
him  who  offers  them.  Although  the  rule  under  discussion  Wcts  estab- 
lished at  a  time  when  parties  to  an  action  were  not  allowed  to  be  wit- 
nesses, the  subsequent  legislation,  which  removed  that  disqualification 
and  authorized  parties  to  testify  in  their  own  behalf,  has  not  deprived 
them  of  the  right  to  introduce  their  books  of  account  in  evidence. 
(Tomlinson  v.  Borst,  supra;  Stroud  v.  Tilton,  3  Keyes  139.)  The 
rule  may,  still,  be  an  important  one  in  the  administration  of  justice 
in  cases  where  the  party  kept  no  clerk  able  to  testify  to  the  truth  of 
the  entries  in  his  books  and  where,  unless  they  are  admitted,  great 
inconvenience  and  a  denial  of  justice  may  follow. 

The  conditions  precedent  to  the  admissibility  of  the  plaintiff's  books 
of  account  were  sufficiently  complied  with,  within  the  requirements 
of  the  rule  in  Vosburgh's  case.  The  plaintiff  had  sworn  that  he  per- 
sonally delivered  nearly  all  the  coal  charged  and  that  the  books  which 
were  produced  contained  his  accounts.  That  he  had  no  clerk  was 
manifest  from  his  testimony.  In  fact,  the  appellant  does  not  claim 
that  the  plaintiff  did  have  a  clerk  and  of  course,  the  plaintiff's  wife 


Account  Book  Entries  343 

cannot  be  claimed  to  be  a  clerk,  within  the  meaning  of  the  rule.  The 
clerk  so  intended  means  one  who  had  something  to  do  with  him,  and 
had  knowledge  generally  of  the  business  of  his  employer  and  would 
be  enabled  to  testify  upon  the  subject  of  the  goods  sold.  (Matter  of 
McGoldrick  v.  Traphagen,  supra.) 

The  plaintiff  had  affirmatively  shown,  not  only  that  his  wife  kept 
books  for  him  but  that  it  was  he  who  either  delivered  the  coal  or 
superintended  its  delivery.  The  evidence  was  sufficient  to  negative 
the  idea  that  he  kept  a  clerk  who  could  testify,  by  reason  of  his  em- 
ployment, to  the  correctness  of  the  account  of  goods  sold  and  deliv- 
ered. The  remaining  requirement,  that  proof  should  be  made  that 
the  plaintiff  kept  fair  and  honest  books,  was  sufficiently  met  in  the 
evidence  of  the  two  witnesses,  which  has  been  mentioned.  The  evi- 
dence went  to  establish,  not  only  the  character  of  the  plaintiff  for 
honesty,  but  that  in  a  course  of  business  extending  over  several  years 
the  witnesses  had  always  found  his  books  to  be  correct.  In  the  one 
case,  the  witness  paid  his  bills  relying  upon  the  plaintiff's  honesty  and 
not  upon  his  recollection  as  to  the  amount  of  coal  ordered;  in  the 
other  case,  the  witness  had  settled  the  plaintiff's  bill  against  his  em- 
ployers according  to  his  books  and  according  to  their  own  books,  and 
had  always  found  the  plaintiff's  books  to  be  correct.  Such  evidence 
should  be,  and  is  quite  sufficient  to  discharge  the  burden  resting  upon 
the  plaintiff  with  respect  to  that  item  of  the  .proof  required  by  the 
rule. 

The  judgment  should  be  affirmed,  with  costs. 

Parker,  Ch,  J.,  O'Brien,  Haight^  Landon  and  Werner,  JJ.,  con- 
cur ;  CuleEn,  J.  not  sitting. 

Judgment  affirmed. 


RILEY  v.  BOEHM. 
167  Mass.  183.     (i8p6) 


Contract,  for  money  had  and  received.  Trial  in  the  Superior  Court, 
before  Bishop,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as 
follows : 

In  April,  1894,  the  plaintiff,  who  was  a  retail  liquor  dealer  in  Fall 
River,  borrowed  $400  from  the  defendant,  and  gave  therefor  his 
promissory  note  payable  three  months  after  date  at  the  B.  M.  C. 


344  Cases  on  Evidence 

Durfee  Safe  Deposit  and  Trust  Company.  The  note  was  discounted 
by  the  defendant  at  the  First  National  Bank  and  at  its  maturity,  July 
23,  1894,  was  paid  at  the  B.  M.  C.  Durfee  Safe  Deposit  and  Trust 
Company,  where  the  plaintiff  had  a  deposit,  by  charging  it  up  to  the 
plaintiff's  account.  The  two  banks  did  business  in  the  same  rooms 
and  over  the  same  counters,  in  Fall  River. 

The  plaintiff  testified  that  on  July  18,  1894,  a  few  days  before  the 
note  matured,  he  gave  the  defendant  $400  in  cash  to  pay  the  note, 
which  was  then,  as  both  knew,  in  the  bank ;  that  the  defendant  agreed 
to  take  the  note  out  of  the  bank;  that  at  the  same  time  he  gave  the 
defendant  a  check  for  $735  as  full  payment  for  liquors  sold  to  date; 
that  the  defendant  did  not  take  up  the  note;  and  that  the  plaintiff  took 
a  receipt  for  the  $735  but  not  for  the  $400.  This  action  was  brought 
to  recover  the  latter  sum. 

Morton,  J.  The  mere  fact  that  an  entry  in  a  book  is  made  con- 
temporaneously with  the  transaction  which  it  purports  to  record  does 
not  of  itself  entitle  it  to  admission  as  a  piece  of  substantive  evidence. 
It  must  also  appear  to  have  been  made  in  the  regular  course  of  busi- 
ness, under  such  circumstances  as  to  import  its  trustworthiness.  Dono- 
van V.  Boston  &  Maine  Railroad,  158  Mass.  450. 

It  is  for  the  presiding  justice  to  ^ay,  in  the  first  instance,  whether 
the  record  is  of  such  a  character,  and  his  decision  will  not  be  inter- 
fered with  unless  clearly  wrong.  Cogswell  v.  DolHver,  2  Mass.  217, 
222.  Hawks  V.  Charlemont,  no  Mass.  no.  Commonwealth  v.  Coe, 
115  Mass.  481,  504,  505.  Commonwealth  v.  Morgan,  159,  159  Mass. 
375.  I  Greenl.  Ev.  sec.  118,  note  i.  In  the  present  case  the  entry 
which  was  relied  on  was  contained  in  a  small  book,  such  as  is  usually 
carried  in  a  vest  or  side  pocket,  and  was  used  for  making  memoranda 
in  regard  to  any  matter  which  for  any  reason  the  defendant  desired 
to  note.  We  cannot  say  that  the  court  was  not  justified  in  holding 
that  the  character  of  the  book  gave  it  no  standing.  Moreover,  the 
book  was  offered,  not  as  containing  an  entry  relating  to  the  cash  in 
question,  but  as  showing  from  the  absence  of  an  entry  that  the  money 
was  not  paid  as  the  plaintiff  said  that  it  was.  That  is,  the  argument 
was,  that  if  the  defendant  had  received  the  money  he  would  have 
entered  it  in  the  book,  and  because  there  was  no  entry  he  did  not 
receive  it.    This  was  inadmissible.    Morse  v.  Potter,  4  Gray,  292, 

•  Exceptions  overruled. 


Account  Book  Entries  345 

WHITLEY  GROCERY  COMPANY  v.  ROACH. 
115  Ga.  pi8.     (1902) 

Fish,  J.  Roach,  as  trustee  for  Bagley,  a  bankrupt,  sued  the 
Whitley  Grocery  Company  and  the  Bank  of  Southwestern  Georgia, 
to  recover  certain  personalty,  or  its  value,  which  plaintiff  alleged  that 
Bagle,  while  insolvent,  for  the  purpose  of  paying  his  past  due  indebt- 
edness to  defendants,  and  with  the  intention,  then  known  to  them  of 
giving  them  a  preference  over  his  other  creditors,  had  transferred  to 
defendants  within  four  months  prior  to  the  filing  of  the  petition  in 
bankruptcy  against  him.  Upon  the  trial  a  verdict  was  rendered  for 
the  plaintiff  against  the  Whitley  Grocery  Company;  it  moved  for  a 
new  trial,  which  being  refused,  it  excepted. 

Two  stocks  of  merchandise  located,  at  the  time  of  the  transfer, 
in  Sumter  county,  were  portions  of  the  property  for  which  the  action 
was  brought.  The  value  of  this  merchandise  and  the  exact  date  on 
which  it  was  transferred  by  Bagler  were  important  questions  in  the 
trial  of  the  case.  It  appeared  that  Bagley  sold  the  merchandise  to 
CXtgg,  an  agent  of  the  Whitley  Grocery  Company,  and  that  Clegg 
afterwards  sold  it  to  "The  Cash  Store"  at  Cardele.  Defendants,  for 
the  purpose  of  showing  the  date  it  was  made  and  the  value  of 
the  merchandise,  offered  in  evidence  an  inventory  of  the  goods,  pur- 
porting to  have  been  made  by  Hearn,  one  of  the  partners  who  owned 
"The  Cash  Store,"  and  Home  and  Collins,  two  clerks  therein,  after 
the  sale  by  Clegg  to  "The  Cash  Store."  This  inventory  was  offered 
in  connection  with  the  testimony  of  Hearn  and  Home;  Collins  not 
being  introduced  as  a  witness.  It  was  excluded  by  the  court,  and 
this  ruling  was  complained  of  in  the  motion  for  a  new  trial.  There 
was  no  merit  in  the  complaint.  Hearn,  on  cross-examination,  in 
reference  to  the  inventory,  testified  as  follows :  "Mr,  Home  and 
Mr.  Collins  made  all  these  entries  in  this  book.  This  is  the  book. 
That  'A.  G.  S.'  is  the  cost  mark.  Xeo  Washington'  was  the  cost 
mark.  Mr.  Home  wrote  this.  The  book  was  written  by  Mr.  Home 
and  Mr.  Jim  Collins;  there  is  where  Mr.  Collins  wrote  (indicating). 
I  didn't  do  any  of  the  writing,  I  called  it  out;  they  put  it  down  as 
I  called  it  out,  did  it  under  my  directions  part  of  the  time.  Mr, 
Home  or  I  made  that  entry,  (Examining  entry)  Mr.  Home  made 
it.  I  am  swearing  to  that  because  I  saw  it  when  it  was  done." 
Home  testified,  as  to  the  inventory:  "I  know  something  about  the 
invoice  presented  in  book;  it  is  the  invoice  of  the  Bagley  stock,  that 


346  Cases  on  Evidence 

is,  so  much  as  was  received  at  The  Cash  Store;  that  is  the  invoice 
that  was  taken  at  The  Cash  Store,  checked  up  what  we  received. 
That  is  a  correct  invoice.  This  submitted  to  me  is  in  my  handwriting, 
and  it  is  correct;  it  is  all  right."  Hearn  and  Home  both  swore,  in 
a  general  way,  that  the  inventory  was  correct,  but  it  is  evident  that 
they  could  not  know  of  this  of  their  own  knowledge.  Hearn's  tes- 
timony that  it  was  made  by  himself.  Home,  and  Collins,  in  the  man- 
ner set  forth  in  his  evidence,  was  not  controverted,  so  we  take  it 
as  true  that  the  inventory  was  prepared  in  that  way.  Hearn  made 
none  of  the  entries;  he  simply  called  items  for  Home  or  Collins  to 
enter.  What  items  he  called  and  who  entered  them,  Horne  of  Col- 
lins, did  not  appear.  Horne  and  Collins  also  called  items,  and  the 
one  entered  those  called  by  the  other,  but  such  items  were  not  iden- 
tified, and  it  did  not  appear  that  Hearn  had  any  knowledge  whatever 
of  them.  Nor  was  it  shown  that  Horne  had  any  knowledge  of  the 
items  called  by  Hearn  and  entered  by  Collins.  The  inventory  as  a 
whole  was,  therefore,  not  admissible  as  a  memorandum  upon  the 
testimony  of  Hearn  or  Horne,  or  their  joint  testimony,  because 
neither  of  them  aided  in  the  preparation  of  all  of  it,  and  it  could 
not  possibly  represent  their  respective  recollections  of  the  items  called 
and  the  entries  made  about  which  they,  respectively,  had  no  knowl- 
edge at  the  time  the  inventory  was  prepared.  Moreover,  the  portion 
of  the  inventory  made  up  of  the  items  called  by  Collins  and  entered 
by  Horne  would  seem  in  the  absence  of  Collins's  testimony  as  to  their 
correctness,  to  be  hearsay.  It  was  held  in  Phenix  Insurance  Co.  v. 
Hart,  112  Ga.  765  (4),  that:  "Before  a  memorandum  made  for 
the  purpose  of  preserving  a  record  of  a  given  fact  or  transaction  can, 
in  any  event,  be  admitted  in  evidence  as  original  testimony,  it  must 
affirmatively  appear  that  it  was  made  by  the  witness  in  connection 
with  whose  testimony  it  is  offered,  and  that  testimony  must  show 
absolutely  the  genuineness  and  correctness  of  the  memorandum." 
Judgment  affirmed.  All  the  Justices  concurring,  except  Lewis,  J., 
Absent.  ^ 


Account  Book  Entrie;s  347 

HERRIOTT  V.  KERSEY. 
6q  Iowa  III.     (1886) 

The  petition  contains  four  counts,  and  the  plaintiff  seeks  to  recover 
rent  under  an  express  contract  on  an  account  for  money  received, 
and  for  the  use  and  occupation  of  certain  premises.  There  was  a 
denial  of  the  allegations  of  the  petition  and  a  counter  claim  pleaded 
by  the  defendant.  Trial  by  jury,  judgment  for  plaintiff,  and  defend- 
ant appeals, 

Seevers,  J.  Certain  books,  purporting  to  be  plaintiff's  books  of 
original  entry,  and  identified  as  such,  were  introduced  in  evidence, 
and  it  is  insisted  that  the  books  contained  numerous  charges,  which 
were  not  made  by  either  of  the  witnesses  who  testified  in  relation 
to  the  books.  We  understand  that  the  entries  were  made  by  four 
persons,  three  of  whom  were  witnesses  and  gave  the  requisite  statu- 
tory evidence  in  relation  thereto;  and  the  court  said,  as  to  the  entries 
made  by  the  fourth  person,  Atkinson,  that  the  books  could  not  be 
introduced  to  prove  the  charges  made  by  him.  To  our  minds,  it  is 
perfectly  clear  that  the  point  made  by  counsel  is  not  well  taken. 

Affirmed. 


SCHLICHTER  v.  WHYTE. 
74  N.  J.  Bq.  839.     (1908) 

Parker,  J.  This  is  a  suit  for  an  accounting  between  former  part- 
ners. 

The  fifth  exception  is  that  the  master  charged  the  defendant  with 
items  of  cash  shown  on  the  ledgers  without  other  proof. 

The  point  made  by  appellant,  is,  in  substance,  that  the  ledgers  were 
not  available  as  evidence  without  the  day  books  or  other  books  of  orig- 
inal entry.  The  proof  shows  that  the  parties  as  partners  kept  partner- 
ship books  by  paid  bookkeepers,  and  that  these  books  consisted  of 
memorandum  day  books  called  "blotters"  and  "ledgers."  The  blotters 
seem  to  have  disappeared.  The  ledgers  were  fully  identified  as  those 
of  the  partnership. 

Counsel  rely  upon  the  cases  in  our  reports,  holding  that  as  between 
tradesmen  and  their  debtors  the  books  of  account  of  original  entry 


348  Cases  on  Evidence 

are  admissible,  but  that  other  books,  in  which  these  original  entries 
are  posted  are  admissible  only  as  supplementary  to  the  books  of  orig- 
inal entry,  so  that  the  whole  of  the  account  should  appear,  and  that 
the  ledgers  without  the  books  of  original  entry  are  not  admissible. 
Bonnell  v.  Mawha,  37  N.  J.  Law,  198;  Rumsey  v.  New  York  and 
New  Jersey  Telephone  Co.,  49  N.  J.  Law  322;  Diament  v.  Colloty,  66 
N.  J.  Law  295. 

These  decisions  undoubtedly  indicate  the  law  of  this  State  on  that 
subject,  but  in  our  view  are  not  applicable  to  this  case.  The  parties 
here  were  partners,  so  that  each  partner  was  an  agent  for  all  the 
others  as  to  partnership  transactions.  So  also  the  bookkeepers  em- 
ployed by  them  from  time  to  time  were  agents  for  every  partner  as 
against  the  others,  and,  therefore,  entry  in  the  ledgers  by  a  bookkeeper 
in  the  course  of  his  employment  constituting  a  charge  against  one 
partner  in  favor  of  the  others,  amounted  to  an  admission  by  the 
partner  against  whom  it  was  charged.  In  this  view  of  the  case  the 
ledgers  were  properly  admitted. 

The  decree  appealed  from  will  be  affirmed. 


SWAN  V,  THURMAN. 
112  Mich.  416.     (1897) 


Assumpsit  by  Thomas  Swan  against  Charles  Thurman  for  goods 
sold  and  delivered.  From  a  judgment  for  plaintiff,  defendant  brings 
error.    Reversed. 

Hooker,  J.  The  defendant  appeals  from  a  judgment  against  him 
in  an  action  of  assumpsit,  alleging  two  errors : 

1.  That  plaintiff's  books  of  account  were  improperly  admitted  »n 
evidence. 

2.  That  the  plaintiff  had  assigned  his  claim  to  another  as  security, 
and  has  no  authority  to  sue  for  and  collect  it  upon  his  own  account 
and  in  his  own  name. 

The  latter  contention  is  based  upon  a  chattel  mortgage  which  cov- 
ered the  plaintiff's  stock  and  included  his  accounts.  In  addition  to 
the  usual  provisions  of  chattel  mortgages,  this  mortgage  contained 
the  following,  viz. : 

"It  is  agreed  that  until  default  be  made  by  the  mortgagor  in  one 
or  more  of  the  conditions  above  recited,  or  proceedings  are  taken  to 


Account  Book  Entries  349 

foreclose  this  mortgage,  the  mortgagor  may  possess,  sell,  and  use  said 
mortgaged  property  in  the  regular  course  of  retail  business,  but  not 
for  any  other  purpose." 

The  evidence  in  support  of  the  plaintiff's  account  consisted  of  the 
testimony  of  the  bookkeeper,  who  stated  that  he  kept  the  books  of 
the  plaintiff  which  contained  the  accounts.  It  appeared  conclusively 
that  the  bookkeeper  had  no  personal  knowledge  of  the  sale  and 
delivery  of  the  goods;  all  that  he  knew  about  their  delivery  being 
obtained  from  slips  handed  to  him  daily  by  the  waiters,  who  took  the 
orders  and  delivered  the  articles.  It  is  sometimes  proper  to  admit 
books  of  account  as  evidence  of  the  acts  of  those  who  keep  them, 
where  the  entries  are  contemporaneous  with  the  acts  recorded;  but 
where  the  book  is  as  in  this  case  the  record  of  the  acts  of  others, 
not  within  the  personal  knowledge  of  the  bookkeeper,  but  made  up 
by  him  from  the  statements  of  others,  such  book  is  hearsay.  From 
the  earliest  cases,  the  admission  of  entries  by  third  persons  has  pro- 
ceeded upon  the  theory  that  such  person  had  personal  knowledge  of 
the  fact  stated  in  the  entry.  Such  was  the  case  in  the  leading  case  o^ 
Price  v.  Earl;  Torrington,  i  Salk.  285,  where  though  the  entry  was 
made  by  one  who  did  not  deliver  the  goods,  it  was  made  in  the 
presence  of  and  was  signed  by  the  drayman  who  did,  and  it  was 
treated  as  the  entry  of  the  drayman,  and  admitted  after  his  death. 
In  Smith  v.  Blakely,  L.  R.  2  Q.  B.  326,  Blackburn,  J.,  says  of  the 
English  authorities. 

"The  rule  to  be  collected  from  all  the  cases  is  that  it  is  an  essen- 
tial fact  to  render  such  entry  admissible,  that  not  only  it  should  be 
made  in  the  due  discharge  of  the  business  about  which  the  person 
is  employed,  but  the  duty  must  be  to  do  the  very  thing  to  which  the 
entry  relates,  and  then  to  make  a  record  of  it." 

In  Welsh  v.  Barrett,  15  Mass.  380,  Parker,  C.  J.,  said: 

"But  what  a  man  has  actually  done,  and  committed  to  writing, 
when  under  obligation  to  do  the  act,  it  being  in  the  course  of  the 
business  he  has  undertaken,  and  he  being  dead,  there  seems  to  be  no 
danger  in  submitting  to  the  consideration  of  the  jury." 

See,  also,  Nicholls  v.  Webb,  8  Wheat.  326;  Livingston  v,  Tyler,  1.4 
Conn.  493. 

The  general  subject  is  exhaustively  discussed  in  a  note  to  Price 
V.  Earl  of  Torrington,  i  Smith  Lead.  Cas.  344,  but  we  find  nothing 
consistent  with  the  proposition  that  entries  made  by  a  third  person, 
living  or  dead,  may  be  introduced  to  prove  facts  regarding  which  it 
is  shown  that  he  had  no  personal  knowledge  at  the  time  the  entries 


350  Cases  on  Evidknce 

were  made.     It  was  necessary  in  this  case  to  make  further  proof, 
before  it  could  be  said  that  these  books  made  a  prima  facie  case. 

In  Jackson  v.  Evans,  8  Mich.  476,  the  defendant  was  charged  with 
brick  which  were  delivered  by  plaintiff's  teamsters.  One  witness 
counted  the  brick  when  loaded,  and  kept  account  of  them  in  a  tally 
book  or  slate,  until  evening  or  the  next  day,  when  he  reported  the 
number  to  the  plaintiff,  but  made  no  entries  nor  charges  in  plaintiff's 
books.  It  was  held  that  these  were  not  original  entries.  But  the 
court  held  that,  before  the  books  could  be  introduced,  it  was  neces- 
sary to  call  the  teamsters,  and,  while  they  might  not  be  able  to  re- 
member how  many  bricks  they  delivered  to  the  defendant,  they  might 
remember  that  all  loaded  for  him  were  delivered,  which  "would  be 
a  very  important  link  in  the  chain  of  circumstances  to  prove  a  sale 
and  delivery  of  the  articles  charged."  The  court  said :  "The  team- 
sters, can  prove  the  delivery,  Evans  proves  the  number  loaded  and 
hauled  away,  and  that  he  reported  them  to  the  defendant  (in  error), 
who  entered  them  in  his  books.    This  makes  up  the  res  gestae." 

We  are  of  the  opinion  that  the  books  were  not  admissible  without 
further  proof,  and  that  the  defendant  was  entitled  to  a  directed  ver- 
dict. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 

The  other  Justices  concurred. 


CHISHOLM  v.  THE  BEAMAN  MACHINE  CO. 

AND 

CHISHOLM  V.  OSWALD  KUTSCHE. 

160  III.  loi.     (i8p6) 

Magruder,  J.  These  cases  were  tried  by  agreement  before  a  judge 
of  the  Superior  Court  of  Cook  County  without  a  jury.  No  proposi- 
tions were  submitted  by  either  side  to  the  trial  court  to  be  held  as 
law  in  the  decision  of  the  case.  There  is,  therefore,  no  question 
before  us  for  our  consideration,  except  the  question  hereafter  men- 
tioned as  to  the  correctness  of  the  ruling  of  the  trial  court  in  the 
admission   of   certain   evidence. 

Upon  the  trial  below,  the  plaintiffs  were  permitted  to  introduce 
in  evidence  the  books  of  account  of  the  Beaman  Machine  Com- 
pany over  the  objection  of  the  defendants,  to  which  ruling  exception 
was  duly  taken. 


Account  Book  Entries  351 

The  evidence  shows  the  following  mode  of  keeping  account  of  the 
time  spent  in  work  upon  the  machines :  Each  workman  at  the  end 
of  each  day  made  out  a  time  check  or  slip  in  his  own  handwriting, 
stating  therein  the  number  of  the  piece  he  had  worked  upon  and  the 
number  of  hours  he  had  worked  thereon  during  the  day ;  at  the  close  of 
day  he  dropped  this  time-slip  into  a  locked  box,  arranged  like  a  letter- 
box, in  the  tool-room  of  the  shop;  the  next  morning  the  foreman  of 
the  shop  took  these  time-slips  out  of  the  box,  checked  them  over, 
uent  to  see  the  workman  who  made  the  slip  if  anything  was  wrong 
about  it,  m.arked  the  slips,  "approved,"  which  were  found  to  be  cor- 
rect, and  then  turned  them  over  to  the  bookkeeper  in  the  usual  way ; 
the  bookkeeper  on  the  same  day,  or  the  following  day,  made  a  trans- 
cript of  these  tickets  or  time-slips  into  a  book  called  the  time  book, 
the  entries  therein  showing  the  number  of  the  piece  of  machinery 
worked  upon,  the  name  of  the  workman  and  the  amount  of  the  time. 
During  the  time  when  the  work  was  done  upon  these  brick  machines 
from  the  early  part  of  May,  1890,  to  the  early  part  of  December, 
1890,  the  entries  in  the  time-book  were  made  by  two  bookkeepers. 
When  the  books  were  introduced,  these  bookkeepers  were  placed  upon 
the  stand  and  swore,  that  the  entries  in  the  time-book  were  correct; 
that  such  entries  were  a  correct  transcript  of  the  tickets,  and  for  the 
work  done  in  the  shop,  as  shown  by  the  tickets;  that  the  entries  were 
made  from  the  tickets  made  out  by  the  men  in  the  shop,  and  generally 
handed  to  the  bookkeeper  by  the  foreman  the  next  morning;  that  the 
tickets  were  examined  by  the  bookkeepers,  and  when  any  errors  were 
found,  they  were  corrected  by  the  foreman  and  the  bookeeper  before 
the  entries  were  made  in  the  books. 

The  foremen,  who  had  charge  of  the  workmen  during  the  progress 
of  the  work  upon  the  machines,  and  who  examined  and  approved  of 
the  tickets  or  time-slips,  were  also  put  upon  the  stand,  and  swore  to 
their  signatures  upon  the  time-slips;  that  they  had  looked  them  over, 
and  had  superintended  the  men,  and  had  had  charge  of  their  work; 
that  the  tickets,  turned  in  for  the  work,  as  signed  and  approved  by 
them,  were  correct,  and  correctly  represented  the  time;  and  that  the 
work  specified  on  the  tickets  was  done. 

We  think,  that  the  books  were  properly  admitted  in  evidence  in 
connection  with  proof  of  the  facts  and  circumstances  already  detailed. 
Their  mere  admission  was  not  a  determination  of  the  weight  to  which 
they  were  entitled  as  evidence,  and  it  was  the  privilege  of  the  appel- 
lants to  attack  their  reliability  by  any  legitimate  testimony  tending  to 
show  their  incorrectness. 


352  Cas^s  on  Evidence 

The  entries  in  the  account  book,  or  book  of  original  entries,  may  be 
proved  by  the  clerk  who  made  them  if  he  is  alive  and  can  be  pro- 
duced. In  order  to  make  the  book  admissible,  it  is  necessary  that  the 
entries  therein  should  have  been  made  in  the  ordinary  course  of  busi- 
ness by  a  person  whose  duty  it  was  to  make  them  and  that  they 
should  have  been  made  contemporaneously  with  the  doing  of  the 
work,  for  which  the  charges  are  made,  so  as  to  form  a  part  of  the 
res  gestae. 

Where  the  clerk,  who  makes  the  entries,  has  no  knowledge  of  their 
correctness,  but  makes  them  as  the  items  furnished  by  another,  it  is 
essential  that  the  party  furnishing  the  items  should  testify  to  their 
correctness,  or  that  satisfactory  proof  thereof — such  as  the  transac- 
tions are  reasonably  susceptible  of — from  other  sources  should  be 
produced.     (House  v.  Beak,  supra.) 

Where  there  is  original  evidence  that  laborers  were  employed,  and 
that  their  time  was  correctly  reported  by  persons  having  personal 
knowledge  of  the  facts,  and  that  these  reports  were  made  in  the  ordi- 
nary course  of  business,  and  in  accordance  with  the  duty  of  the  per- 
sons making  them,  and  in  point  of  time  were  contemporaneous  with 
the  transactions  to  which  the  reports  related;  and  where  this  original 
evidence  is  combined  with  proof  by  the  person  receiving  the  reports 
that  he  correctly  entered  them  as  reported  in  the  time-book  in  the 
usual  course  of  his  business  and  duty,  the  entries  so  made  are  admis- 
sible as  evidence  to  show  the  amount  of  work  done.  (Mayor  of  New 
York  V.  Second  Avenue  Railroad  Co.,  102  N.  Y.  572;  In  re  McGold- 
rick  V.  Traphagen,  88  id.  334;  Little  Rock  Granite  Co.  v.  Dallas 
County,  66  Fed.  Rep.  522;  Redlich  v.  Bauerlee,  98  111.  134. 

Judgment  affirmed. 


ARCHITECTS  &  BUILDERS  v.  STEWART. 

68  W.  Va.  507.     (1911) 

Miller,  Judge.  The  court  below  sustained  defendant's  demurrer 
to  plaintiff's  evidence,  and  entered  judgment  thereon  for  demurrant. 
Defendant  offered  no  evidence  except  her  own  to  the  effect  as  execu- 
trix she  had  found  among  decedent's  papers  no  account  of  memoran- 
dum showing  any  indebtedness  to  plaintiff.     On  cross-examination. 


Account  Book  Entries  353 

however  she  admitted,  that  as  far  as  she  knew  decedent  kept  no  regu- 
lar books  of  account  with  individuals. 

The  action  was  assumpsit,  plaintiff  demanding  of  decedent's  estate, 
a  balance  alleged  to  be  due  it  on  account  growing  out  of  contracts  to 
build  certain  houses,  barns,  &c. 

Plaintiff  offered  as  witnesses  to  prove  the  account  Miss  Dickey, 
its  bookkeeper  and  stenographer,  and  also  McNulty,  its  president  and 
general  manager.  Miss  Dickey  proved  that  she  was  the  bookkeeper 
and  stenographer  of  plaintiff  during  the  time  covered  by  the  account 
sued  for;  that  she  kept  the  books  of  plaintiff  and  made  entries  in  the 
account  against  decedent  in  the  regular  course  of  business,  and  that 
decedent  in  his  lifetime  was  indebted  to  plaintiff  in  the  sum  of 
$415.54,  the  balance  sued  for.  In  connection  with  her  testimony,  the 
ledger,  the  book  of  original  entry,  was  also  offered  and  admitted  in 
evidence.  The  witness  also  testified  that  she  had  seen  the  contract 
between  plaintiff  and  decedent  to  do  the  work  covered  by  the  account ; 
that  she  had  made  up  the  book  statements  of  the  account  against  de- 
cedent in  his  lifetime,  and  mailed  them  to  him,  and  that  if  he  had 
ever  disputed  the  account  it  had  not  come  to  her  knowledge.  On ' 
cross-examination,  however,  the  witness  admitted  that  she  had  no 
personal  knowledge  of  the  correctness  of  the  several  items  in  the 
account,  except  that  she  had  kept  them  on  file  as  they  had  been  turned 
in  to  her  and  that  she  had  made  the  entries  from  information  given 
her  by  McNulty,  and  by  one  Wine,  who  she  describes  as  partner  and 
foreman, 

McNulty  was  offered  as  a  witness  to  supplement  the  testimony  of 
the  bookkeeper,  but  defendant  objecting  thereto,  his  eyidence  was  ex- 
cluded so  far  as  it  related  to  personal  transactions  with  decedent  in 
his  lifetime,  as  incompetent  because  of  interest. 

The  only  question  presented  for  decision  is,  did  the  court  below  err 
in  its  judgment  on  the  demurrer  to  the  evidence?  Plaintiff  did  prove 
by  McNulty,  also  by  Taylor,  who  had  been  president  and  manager, 
that  Miss  Dickey  was  bookkeeper,  and  that  it  was  customary  for  all 
items  of  business  to  be  turned  into  the  office  and  to  be  kept  by  her; 
and  by  McNulty,  on  cross-examination,  defendant  proved  that  after 
the  item,  to  check  $375.00,  charged  in  the  account,  he  had  in  his  own 
handwriting,  about  the  time  of  the  entry  by  Miss  Dickey  written  the 
words  "money  loaned."  On  re-direct  examination  the  check  with 
indorsements  was,  without  objection,  admitted  in  evidence. 

By  her  demurrer  to  the  evidence  defendant  has  apparently  staked 
her  defense  upon  the  proposition  that  the  evidence  of  IMiss  Dickey 


354  Cases  on  Evidence 

was  lacking  in  the  essential  requisite  of  personal  knowledge  of  the 
transactions,  entered  by  her,  to  render  her  testimony  in  connection 
with  the  books  legal  and  competent  evidence  as  against  defendant  of 
the  truth  of  such  entries.  The  general  rule  undoubtedly  is,  as  stated 
in  Vinal  v.  Gilman,  21  W.  Va.  301,  that  to  render  such  entries  legal 
and  competent  evidence,  the  book  of  account  must  be  (i)  a  book 
of  original  entry;  (2)  the  entry  co-temporaneous,  or  practically  so, 
with  the  transaction;  (3)  it  must  be  made  in  the  regular  course  of 
one's  business  or  employment,  and  (4)  the  entrant  must  have  had 
personal  knowledge  of  the  transaction.  See  also  i  Elliott  on  Ev.  sec. 
455,  et  seq.;  17  Cyc.  391,  et  seq. 

It  is  not  claimed  the  plaintiff's  evidence  was  lacking  in  any  of  these 
requisites,  except  the  fourth.  Did  this  want  of  personal  knowledge 
on  the  part  of  Miss  Dickey,  under  all  the  facts  and  circumstances  dis- 
closed by  the  record,  justify  the  judgment  of  the  court  on  the  demur- 
rer to  the  evidence? 

Can  the  case  we  have  here  be  brought  within  any  recognized  ex- 
ception to  or  limitation  upon  the  general  rule?  2  Wigmore  on  Ev. 
sec.  1530,  referring  to  sec.  1522,  for  a  discussion  of  the  circumstantial 
guarantee  of  trustworthiness,  contains  a  full  discussion  of  the  subject 
of  these  exceptions  and  limitations,  too  long  for  quotation,  but  to 
which  reference  is  made  for  the  learning  on  the  subject.  He  there 
shows,  by  reference  to  the  judicial  decisions,  some  of  which  have  al- 
ready been  cited  by  us,  how  in  the  event  either  the  entrant  with  or 
without  personal  knowledge  of  the  transaction,  or  the  one  with  such 
personal  knowledge  and  on  whose  information,  oral  or  written,  the 
entry  was  made,  or  both,  be  dead  or  unavailable  as  witnesses,  the 
entry  having  been  shown  to  have  been  made  in  the  usual  course  of 
business  and  according  to  an  established  custom  of  conducting  the 
business,  the  element  of  personal  knowlege  is  thereby  supplied,  ren- 
dering the  entry  available  as  legal  evidence,  on  principles  of  neces- 
sity, or  inconvenience  in  obtaining  the  witnesses.  "The  conclusion 
is,  then,"  says  this  writer,  "that  where  an  entry  is  made  by  one  per- 
son in  the  regular  course  of  business,  recording  an  oral  or  written 
report,  made  to  him  by  one  or  more  other  persons  in  the  regular 
course  of  business,  of  a  transaction  lying  in  the  personal  knowledge 
of  the  latter,  there  is  no  objection  to  receiving  that  entry  under  the 
present  exception,  provided  the  practical  inconvenience  of  producing 
on  the  stand  the  numerous  persons  thus  concerned  would  in  the  par- 
ticular case  outweigh  the  probable  utility  of  doing  so."  And  as  a 
reason  for  recognizing  and  applying  the  exception  where  applicable. 


Account  Book  Entries  355 

this  writer  says :  "Why  should  not  this  conclusion  be  accepted  by 
the  courts?  Such  entries  are  dealt  with  in  that  way  in  the  most 
important  undertakings  of  mercantile  and  industrial  life.  They  are 
the  uhimate  basis  of  calculation,  investment,  and  general  confidence 
in  every  business  enterprise;  nor  does  the  practical  impossibility  of 
obtaining  constantly  and  permanently  the  verification  of  every  em- 
ployee affect  the  trust  that  is  given  to  such  books.  It  would  seem  that 
expedient  which  the  entire  commercial  world  recognizes  as  safe 
could  be  sanctioned,  and  not  discredited,  by  courts  of  justice.  When 
it  is  a  mere  question  of  whether  provisional  confidence  can  be  placed 
in  a  certain  class  of  statements,  there  cannot  profitably  and  sensibly 
be  one  rule  for  the  business  world  and  another  for  the  court  room. 
The  merchant  and  the  manufacturer  must  not  be  turned  away  remedi- 
less because  methods  in  which  the  entire  community  places  a  just  con- 
fidence are  a  little  difficult  to  reconcile  with  technical  judicial  scruples 
on  the  part  of  the  same  persons  who  as  attorneys  have  already  employed 
and  relied  upon  the  same  methods.  In  short,  courts  must  here  cease 
to  be  pedantic  and  endeavor  to  be  practical."  The  writer  follows 
this  statement  of  the  principle  by  quotations  from  and  citations  in 
foot  notes  of  numerous  judicial  decisions  sanctioning  and  applying 
the  principle.  It  is  wholly  unnecessary  to  do  more  than  refer  to  this 
discussion  of  the  subject  by  that  writer.  In  Insurance  Co.  v.  Sea- 
board Air  Line  Ry.,  supra,  the  North  Carolina  court  quotes  at  length 
and  approvingly  from  this  section  in  Wigmore,  in  support  of  the 
conclusions  reached  in  that  case. 

We  think  the  principle  of  the  exception  sound,  and  supported  by 
reason  and  judicial  authority,  and  that  it  is  one  which  ought  to  be 
recognized  and  applied  in  this  case.  Otherwise  plaintiff,  because  of 
the  death  of  decedent,  and  the  objection  to  and  the  unavailability  be- 
cause of  interest  of  the  evidence  of  living  witnesses  must  lose  what 
we  must  assume  is  a  meritorious  debt  and  claim  against  decedent's 
estate. 

For  the  reasons  given  we  are  of  opinion  that  plaintiff  made  a 
prima  facie  case  entitling  it  to  a  submission  of  its  evidence  to  the 
jury,  and  that  the  court  below  erred,  as  a  matter  of  law,  in  sustaining 
the  demurrer  of  the  defendant  thereto,  and  entering  judgment  for 
thereon. 

Reversed  and  judgment  rendered. 


356  Cases  on  EviDENCii 

F.  DOHMEN  CO.  (Limited)  v.  NIAGARA  FIRE  INS.  CO. 
96  Wis.  38.     (1897) 

This  i's  an  action  on  a  fire  insurance  policy  issued  on  the  30th  day 
of  June,  1892,  for  the  term  of  one  year,  insuring  plaintiff's  property, 
described  therein,  to  the  amount  of  $2,5(X).  Such  property  consisted 
of  a  wholesale  stock  of  drugs,  medicines,  paints,  and  other  mer- 
chandise kept  by  plaintiff  in  its  wholesale  establishment  in  the  city  of 
Milwaukee.  The  policy  was  one  of  several  by  which  insurance  was 
carried  on  such  property  to  the  amount  of  $65,500.  On  the  28th  day 
of  October,  1892,  such  property  was  partially  destroyed  by  fire.  Plain- 
tiff claimed  to  have  suffered  damages  on  such  property  by  such  fire 
in  a  sum  in  excess  of  $57,000.  This  action  was  brought  to  recover 
the  proportionate  share  of  such  loss  represented  by  the  policy  in 
question.  The  complaint  is  in  the  usual  form.  Defendant  answered, 
putting  in  issue  the  amount  of  the  loss,  and  alleging  that  the  policy 
contained  a  provision  rendering  it  void  in  case  of  any  fraud  or  false 
swearing  on  the  part  of  plaintiff,  and  that  plaintiff  had  been  guilty 
thereof. 

Marshall,  J.  It  is  further  contended  that  the  judgment  should  be 
reversed  for  error  in  allowing  Fred  Dohmen,  Sr.,  and  Henry  Dohmen 
to  testify  from  the  corporation  account  books  respecting  the  amount 
of  goods  on  hand  at  the  time  of  the  fire.  This  is  the  evidence  spe- 
cially referred  to  in  the  preceding  paragraph.  Fred  Dohmen,  Sr.,  tes- 
tified without  objection  to  the  amount  of  goods  on  hand  as  shown  by 
the  inventory  of  February,  1891,  and  also  testified  to  the  correctness 
•  of  such  inventory.  With  that  as  a  starting  point,  and  without  verify- 
ing the  correctness  of  the  account  books  in  any  way,  he  was  allowed 
against  objection,  to  testify  to  the  amount  of  purchases  from  the 
time  such  inventory  was  made  up  to  the  time  of  the  fire,  also  as  to 
the  amount  of  sales  during  such  period,  as  recorded  in  such  books. 
The  value  of  the  goods  when  the  fire  occurred  was  then  determined 
by  adding  to  the  amount  as  shown  by  such  inventory  the  amount  of 
the  subsequent  purchases  and  deducting  therefrom  the  sale  as  shown 
by  the  books ;  then  adding  to  the  result  the  percentage  of  profit  which 
the  witness  Fred  Dohmen,  Sr,,  said  the  plaintiff  averaged  to  make 
in  the  business.  Thus  the  question  is  clearly  presented  of  whether 
the  amount  of  stock  on  hand  at  the  time  of  the  fire,  under  the  cir- 
cumstances, could  properly  be  established  by  testimony  given  of  the 
contents  of  the  books  by  a  person  who  did  not  keep  them,  was  not 


Account  Book  Entries  357 

able  to  verify  their  correctness  in  any  way,  and  without  such  correct- 
ness being  verified  in  any  manner,  or  the  books  being  in  evidence. 
That  question  must  be  answered  in  the  negative.  No  authority  has 
been  brought  to  our  attention,  either  by  respondent's  counsel  or  other- 
wise, that  justifies  the  admission  of  such  evidence. 

Just  how  to  proceed  in  such  a  case  is  by  no  means  free  from  diffi- 
culty. In  a  large  business,  obviously  it  is  impossible  to  produce  wit- 
nesses to  testify  of  their  personal  knowledge  respecting  the  amount 
of  stock  on  hand,  or  to  the  purchases  and  sales  which  may  have  oc- 
curred during  a  long  period  of  time.  The  bookkeeper  cannot  ordi- 
narily be  expected  to  testify  to  more  than  that  the  entries  made  by  him 
are  correct,  according  to  the  facts  as  reported  to  him  in  the  regular 
course  of  business.  Such  information  must  necessarily  come  to  him 
from  a  variety  of  sources ;  and  to  verify  the  same,  except  in  the  most 
important  transactions,  in  a  large  business,  would  be  utterly  impossible. 
There  is  a  surprising  dearth  of  authority  on  the  question,  considering 
the  frequency  with  which  the  difficulty  must  be  met  in  adjusting 
losses  under  similar  circumstances.  The  general  principles  of  the  law 
of  evidence  applicable  to  the  subject  properly  understood,  will  fur- 
nish a  safe  guide.  One  of  the  most  familiar  rules  is  that  the  best 
evidence  the  nature  of  the  case  is  susceptible  of  must  be  produced. 
I  Greenl.  Ev.  sec.  82.  From  the  very  nature  of  the  case,  the  only 
evidence  of  a  definite  character  that  could  be  produced  was  such  as 
could  be  given  by  the  aid  of  the  books.  The  stock  of  goods  that 
existed,  according  to  the  inventory  of  February,  1891,  had  been  added 
to  in  the  regular  course  of  business  for  over  a  year  and  a  half,  and 
the  whole  had  been  reduced  by  daily  sales  during  that  time.  The  mul- 
titude of  transactions  during  such  period,  of  goods  taken  in  and  sent 
out,  could  not  be  established  by  evidence  from  the  mouths  of  wit- 
nesses. The  only  evidence  that  existed  was  locked  up  in  the  books. 
Such  being  the  case,  upon  such  books  being  reasonably  verified  as 
correct  records  of  the  daily  transactions  in  the  business  as  such 
transactions  were  regularly  reported  to  the  office  to  be  recorded  in 
such  books,  with  proof  that  the  books  were  relied  upon  by  the  plain- 
tiff solely  as  a  repository  of  the  facts  in  regard  to  the  business,  and 
that  they  were  uniformly  found  to  be  correctly  kept,  a  witness  who 
had  occasion  to  refer  to  them  from  time  to  time,  and  had  thereby, 
and  through  a  general  knowledge  of  the  business,  been  con- 
vinced of  their  correctness,  might  properly  testify,  by  their  aid,  to 
their  contents  as  facts,  without  having  personal  knowledge  of  such 
facts  independent  of  the  books,  and  without  ever  having  had  any 


358  Cases  on  Evidence 

other  knowledge  of  all  the  individual  transactions  than  such  as  one 
might  be  reasonably  expected  to  have  by  generally  overseeing  a  busi- 
ness. Such  evidence  would  not  be  conclusive  by  any  means,  but 
would  constitute  evidence  bearing  on  the  question  in  suit  proper  to  be 
submitted  to  the  jury  with  all  the  other  evidence  in  the  case. 

Here  there  was  no  proper  foundation  laid  for  the  use  of  the  books. 
They  were  merely  produced  as  the  books  of  account  kept  in  the  busi- 
ness, and,  without  any  verification  whatever,  the  witnesses  were  al- 
lowed to  testify  respecting  their  contents.  There  is  no  rule  with  which 
we  are  familiar  that  warranted  the  admission  of  the  evidence  under 
the  circumstances.  It  was  prejudicial  error,  for  which  the  judgment 
must  be  reversed. 

By  the  Court. — The  judgment  of  the  Superior  Court  is  reversed 
and  the  cause  remanded  for  a  new  trial. 


RAILWAY  COMPANY  v.   HENDERSON. 
57  Ark.  402.     (i8p3) 

Action  by  Henderson  &  Jelks  against  the  St.  Louis  Iron  Mountain 
&  Southern  Railway  Company.  The  complaint  substantially  alleged 
that  plaintiffs  purchased,  at  Auvergne,  in  Jackson  county,  Arkansas, 
13  head  of  Jersey  cattle;  that  their  vendor,  J.  T.  Henderson,  con- 
tracted with  the  Batesville  &  Brinkley  Railway  Company  to  trans- 
port the  cattle  from  Auvergne  to  Searcy  in  White  county,  Arkansas; 
that  the  latter  company  furnished  a  car,  which  it  had  obtained  from 
defendant  railway  company,  for  the  purpose  of  transporting  the  cat- 
tle; that  the  car  so  furnished  was  at  the  time  infected  with  the 
germs  of  Texas  or  Southern  cattle  fever;  that  said  infection  was 
produced  by  the  droppings  of  diseased  cattle  which  had  been  trans- 
ported therein,  and  that  defendant  had  negligently  permitted  such 
droppings  to  remain  in  the  car  until  it  had  become  infected  with  the 
germs  of  the  cattle  fever;  that,  by  reason  of  said  infected  condition 
of  the  car,  plaintiffs'  cattle  became  infected  with  the  fever,  and  in  a 
short  time  after  their  arrival  at  Searcy  nine  of  them  took  sick  and 
died. 

The  jury  returned  a  verdict  for  $900.  A  motion  for  a  new  trial 
was  overruled,  and  defendant  appealed. 

ManspiEIvD,  J.     We  have  carefully  examined  all  the  evidence  con- 


Account  Book  Entries  359 

tained  in  this  record,  and  our  conclusion  is  that  it  admits  of  no 
theory  on  which  we  can  hold  it  sufficient  to  support  the  verdict. 

As  the  cause  must  be  remanded  for  further  proceedings,  it  is 
necessary  to  notice  some  of  the  questions  arising  in  the  course  of  the 
trial. 

In  connection  with  other  circumstances  which  were  in  evidence, 
the  record  produced  by  the  witness,  Hubbard,  showing  the  movement 
of  cars  at  Diaz  station  during  the  year  1889,  would  have  tended  to 
prove  that  Missouri  Pacific  Car  No.  6335,  in  which  the  plaintiffs' 
stock  were  shipped,  had  not  been  recently  used  in  the  carriage  of 
other  cattle.  The  statement  of  Hubbard  is  not  very  explicit;  but 
we  take  it  to  mean  that  the  entries  in  the  record  are  in  the  hand- 
writing of  Clayton,  the  absent  witness,  and  that  they  were  made  in 
the  performance  of  his  duties  as  agent 'of  the  company.  If  such  was 
the  nature  of  the  entries,  and  they  were  contemporaneous  with  the 
facts  recorded,  and  there  was  no  reason  to  question  their  fairness, 
we  think  they  were  admissible  on  being  properly  authenticated.  Mr. 
Greenleaf  places  the  admissibility  of  such  entries  on  the  ground  that 
they  are  part  of  the  res  gestae,  and  he  treats  them  as  original  evi- 
dence which  may  be  received  independently  of  the  testimony  of  the 
person  making  them.  They  must,  however,  be  attthenticated  by  his 
oath  if  he  is  living  and  his  testimony  can  be  procured.  If  he  is 
dead,  or  is  out  of  the  jurisdiction  of  the  court,  or  cannot  be  found, 
they  may  be  admitted  on  proof  of  his  handwriting,  i  Greenleaf  Er. 
sees,  115,  120;  I  Whart.  Ev.  sees.  238,  240,  250,  678,  683,  688;  Welsh 
V.  Barrett,  15  Mass.  380;  Bartholomew  v.  Farwell,  41  Conn.  230; 
Price  V.  Earl  of  Torrington,  i  Smith's  Leading  Cases  (8th  ed.)  563, 
575;  Sneed  v.  State,  47  Ark.  180  and  cases  cited.  But  it  is  incum- 
bent on  the  party  offering  entries  of  this  kind,  unauthenticated  by 
the  oath  of  the  person  who  made  them,  to  show,  as  a  prerequisite  to 
their  admission,  that  such  person  cannot  be  produced  as  a  witness; 
and  when  he  is  living,  some  discretion  must  be  allowed  to  the  trial 
court  in  deciding  whether  proof  offered  as  preliminary  to  the  intro- 
duction of  the  entries  is  sufficient  to  admit  them  as  in  the  case  of  the 
witness'  death.  Sneed  v.  State,  47  Ark.  180,  185.  The  bill  of  ex- 
ceptions does  not  inform  us  that  the  statement  made  by  defendant's 
counsel  as  to  their  inability  to  secure  the  testimony  of  Clayton  was 
received  as  evidence;  and  if  that  statement  be  disregarded,  it  does 
not  appear  that  it  was  error  to  exclude  Clayton's  entries,  with  no 
proof  before  the  court  that  he  could  not  be  found,  except  that  Hub- 


360  Cases  on  Evidence 

bard  swore  that  his  place  of  residence  was  unknown,  without  stating 
whether  any  effort  had  been  made  to  ascertain  it. 

Reversed  on  another  ground. 


CONTINENTAL    NATIONAL    BANK  v.    FIRST    NATIONAL 

BANK. 

108  Tcnn.  S74-     (1901) 

Wii,KES,  J.  The  bill  in  this  case  seeks  to  hold  the  First  National 
Bank  of  Nashville  liable  to  the  Continental  National  Bank  of  Mem- 
phis for  about  $30,000. 

The  ground  of  liability  as  claimed  is,  that  the  Nashville  Bank 
in  its  own  interest,  and  for  its  own  benefit,  falsely  and  fraudulently 
represented  to  the  Memphis  Bank  that  certain  parties  on  paper  pre- 
sented to  it  for  discount  were  good  and  solvent,  when,  as  a  matter  of 
fact,  they  were  insolvent,  and  the  Memphis  Bank  in  consequence, 
lost  the  greater  part  of  the  money  loaned. 

It  is  said  it  was  error  to  introduce  the  books  of  the  bank  in  evi- 
dence. They  were  produced  and  identified  by  the  cashier.  It  is  said 
the  defendants  should  have  gone  further  and  shown  by  the  party  who 
made  the  entries  that  they  were  correct. 

The  books  were  introduced  to  show  the  state  of  accounts  between 
the  Nashville  Bank  and  Duncan,  Gaines  &  Morrow,  the  object  being 
to  show  by  the  course  of  dealing  between  the  bank  and  these  parties 
that  the  bank  was  treating  and  dealing  with  them  as  solvent,  reliable 
customers. 

It  has  been  held  that  where  it  becomes  material,  either  for  or 
against  a  corporation,  and  as  against  a  stranger,  or  as  between  two 
strangers,  to  prove  what  was  done  by  the  corporation,  its  books  and 
records  are  admissible  in  evidence,  and  they  are  the  best  evidence. 
6  Thomp'  Corporations,  sec.  7734. 

We  think  it  not  necessary  that  the  bookkeeper  who  made  the 
entries  should  be  examined  as  to  their  correctness. 

At  most,  he  could  only  testify  that  the  entries  made  by  him  are 
true  entries  of  transactions  reported  to  him  by  others.  In  other 
words,  he  could  only  testify  that  he  wrote  down  what  others  told 
him.  The  court  knows,  as  a  matter  of  common  information,  that 
there  are  many  persons  in  the  employ  of  banks,  and  each  has  his 


Account  Book  Entries  361 

aifferent  department,  and  each  transaction  passes  through  the  hands 
of  several — it  may  be  of  many  persons.  We  take  a  deposit,  for 
instance.  It  goes  into  the  hands  of  the  receiving  teller,  thence  into 
the  hands  of  a  journal  clerk,  thence  to  the  individual  bookkeeper,  or 
such  other  officials  as  perform  the  functions  of  these  officers.  When 
it  reaches  the  hands  of  the  bookkeeper,  who  makes  the  final  entry, 
which  stands  as  the  true  statement  between  the  bank  and  depositor, 
it  has  gone  through  the  hands  of  a  dozen  parties,  perhaps,  and  the 
last  party  only  records  what  comes  to  him  through  so  many  hands, 
and  knows  nothing,  it  may  be  of  the  actual  transaction.  It  would 
seem  that  the  cashier,  whose  function  it  is  to  overlook  all  transactions 
at  the  counter,  and  over  the  books,  and  test  each  transaction  through 
all  its  stages,  should  be  the  person  most  competent  to  produce  the 
books  and  vouch  for  their  accuracy. 

We  do  not  think  there  is  any  reversible  errqr  in  this  assignment. 

Looking  at  the  case  as  a  whole,  it  is  evident  that  before  complain- 
ant can  recover,  it  must  show  that  it  was  fraudulently  misled  by  the 
defendant  to  make  the  loan  it  did. 

Upon  the  whole  case  we  think  the  complainants  have  wholly  failed 
to  make  out  a  case  of  fraud  upon  the  part  of  the  Nashville  Bank,  and 
to  establish  any  ground  of  liability  against  it,  and  the  decree  of  the 
Court  of  Chancery  Appeals  is  affirmed. 


THE   CHICAGO   &  ALTON  R.   R.   CO.  v.   THE  AMERICAN 
STRAWBOARD  CO. 

ipo  III.  268.    (1901) 

Per  Curiam.  For  the  purpose  of  estabHshing  the  quantity  of 
straw  destroyed  by  the  fire,  appellee,  in  addition  to  much  oral  evi- 
dence, was  permitted  against  the  objection  of  appellant,  to  introduce 
eighteen  instruments  of  writing  called  "stack  sheets."  It  is  urged 
these  instalments  were  not  competent  to  be  received  in  evidence. 

It  appeared  from  the  testimony  the  appellee  company,  in  the  regu- 
lar course  of  transacting  the  business  in  which  it  was  engaged,  placed 
the  straw  which  it  owned  in  large  stacks;  that  each  stack  was  given 
a  number,  and  that  a  sheet  called  a  "stack  sheet,"  was  kept  for  each 
stack  as  the  mode  adopted,  in  the  regular  course  of  its  business  by 
the  appellee  company,  of  keeping  an  inventory  of  the  amount  of  straw 


362  Cases  on  Evidence 

on  hand.  The  purpose  they  were  intended  to  serve  was  to  correctly 
advise  the  appellee  company  of  the  amount  of  stock  or  straw  which 
it  had  on  hand.  The  information  contained  in  the  stack  sheets  was 
to  aid  the  appellee  company  in  the  proper  transaction  of  its  own  busi- 
ness, and  were  intended  to  be  accurate,  for  the  company  could  have 
no  purpose  or  intent  to  deceive  itself.  On  the  contrary,  the  controlling 
motive  in  the  preparation  of  the  stack  sheets  was  to  accurately  and 
truthfully  set  down  the  facts  as  they  existed.  Such  stack  sheets 
were  made  up  from  scale  tickets  and  memoranda  kept  by  the  person 
who  did  the  weighing  at  the  scales  where  the  straw  was  weighed 
and  received  into  the  company's  possession,  and  the  parties  who 
transcribed  the  weights  from  such  scale  tickets  and  memoranda  were 
produced  in  court  as  witnesses,  and  each  testified,  for  himself,  that 
the  transcription  by  him  made  was  correctly  made  in  each  instance. 
The  parties  who  transcribed  the  weights  from  the  scale  tickets  to  the 
stack  sheets  were  the  persons  who  weighed  the  straw  as  received 
and  made  the  scale  tickets,  and  each  testified,  for  himself,  that  the 
weights  were  correctly  taken  and  correctly  set  down  on  the  scale 
tickets.  It  appeared  that  the  scale  tickets  showing  the  weight  of  the 
straw  as  received  in  car-load  lots,  or  in  wagon  loads,  as  the  case 
might  be,  had  been  lost  or  destroyed;  that  it  was  not  the  custom  of 
the  appellee  company  to  preserve  them  after  they  had  been  transcribed 
onto  the  stack  sheets.  The  contention  of  counsel  for  the  appellant 
company  is,  that  these  scale  tickets  constituted  the  original  entries 
as  to  the  transactions,  and  that  the  copies  therefrom,  as  shown  on  the 
stack  sheets,  were  not  admissible  in  evidence. 

Without  deciding  whether,  in  the  adjustment  of  accounts  between 
the  appellee  company  and  those  from  whom  the  straw  was  purchased, 
these  scale  tickets  should  be  regarded  as  the  original  entries,  it  is 
quite  clear  that  so  far  as  they  were  connected  with  the  preparation 
of  the  stack  sheets  as  a  means  of  keeping  an  account  or  inventory  of 
stock  on  hand,  they  were  but  memoranda,  and  the  stack  sheets  here 
shown  to  have  been  prepared  from  them  were  admissible  as  original 
documents,  as  tending  to  show  the  number  of  tons  of  straw  in  each 
stack.  Upon  this  point  the  following  remarks  in  the  opinion  of  the 
Appellate  Court  are  adopted  as  expressing  the  views  of  this  court: 
"These  stack  sheets  were,  in  effect,  inventories  of  the  quantities  of 
straw  in  the  several  stacks  destroyed,  and  the  testimony  of  Yost, 
Van  Horn  and  Sager,  when  all  considered,  shows  they  were  correct 
inventories  and  correctly  made  up  from  the  original  notations,  and 
that  the  latter  had  been  lost  or  destroyed.     It  is  only  by  such  tcsti- 


Account  Book  Entries  363 

mony  the  quantities  of  goods  destroyed  by  fire  can  usually  be  proved, 
for  no  witness  can  carry  such  numerous  details  in  his  memory. 
When  the  persons  who  made  such  statements  testify  they  made  them 
correctly,  the  papers  so  made  are  admissible  in  evidence.  In  Insur- 
ance Co.  V.  Weides,  14  Wall.  375,  the  owners  of  a  stock  of  goods 
destroyed  by  fire  proved  they  took  a  correct  inventory  at  a  certain 
date ;  that  the  inventory  was  reduced  to  writing  in  an  inventory  book ; 
that  the  prices  or  values  were  correctly  footed  therein;  that  the  foot- 
ings were  correctly  copied  upon  the  fly-leaf  of  an  exhausted  ledger 
and  afterwards  transferred  to  the  fly-leaf  of  a  new  ledger;  that  the 
inventory  and  exhausted  ledger  had  been  destroyed  and  that  none  of 
the  witnesses  could  remember  the  amount  of  the  inventory  or  foot- 
ings. It  was  held  the  entry  of  the  footings  on  the  fly-leaf  of  the  new 
ledger  was  competent  evidence  in  connection  with  the  oral  testimony. 
It  was  there  said  that  it  had  been  many  times  decided  that  such 
papers,  accompanied  by  such  proof,  are  receivable  in  evidence." 

Judgment  affirmed. 


PEOPLE'S  NATIONAL  BANK  OF  MIDDLETON  v.  RHOADES. 
po  Atl.  Rep.  409  (Del.)     (1913) 

Action  of  assumpsit  (No.  81,  May  Term,  1912)  on  the  common 
counts  with  bill  of  particulars  filed,  to  recover  from  the  defendant, 
a  depositor  in  the  plaintiff  bank,  overdrafts  amounting  to  $1,457.43. 

At  the  trial  the  checks  and  notes  drawn  by  the  defendant  on  his 
account  in  the  plaintiflt  bank  and  paid  by  it  were  admitted  in  evidence 
by  agreement.  The  plaintiff  offered  the  individual  journal  No.  14, 
containing  the  debits  and  credits  of  all  the  depositors  in  the  bank, 
covering  the  year  1906,  and  counsel  stated  that  he  wished  to  prove 
the  entry  of  November  28,  1906,  leaving  the  entry  of  the  first  check 
in  the  series,  paid  by  the  plaintiflF,  previously  admitted  in  evidence; 
the  purpose  of  the  testimony  being  to  show  the  state  of  the  defend- 
ant's account  in  the  bank. 

Mr.  Handy  objected  on  the  ground  that  such  testimony  would  be 
testimony  of  11  cash  item  in  a  book  account  to  charge  the  defendant, 
which  would  be  contrary  to  the  provision  of  the  statutes  of  this  state. 
Revised  Code  1852,  amended  to  1893,  p.  799,  c.  107. 

HiaC,  J.     The  statute  of  this  state  (Revised  Code  1852,  amended 


364  Cases  on  Evidtvnce 

in  1803,  p.  799,  c.  107,  sec.  11),  in  respect  to  a  book  of  original 
entries,  regulariy  and  fairiy  kept,  shall,  together  with  the  oath,  or 
affirmation,  of  the  plaintiff,  be  admitted  in  evidence  to  charge  the 
defendant  with  the  sums  therein  contained  for  goods  sold  and  deliv- 
ered, and  other  matters  properly  chargeable  in  an  account.  Cash 
items  are  not  properly  so  chargeable." 

While  there  can  be  no  doubt,  and  it  has  often  been  decided  by  the 
court,  that  in  a  merchandise  business  cash  items  are  not  such  items 
as  are  properly  chargeable  in  a  book  account,  yet  we  think  when  the 
business  is  one  of  banking,  where  the  commodity  dealt  in  between 
the  depositor  and  the  bank  virtually  is  cash,  then  it  does  constitute 
an  item  properly  chargeable  in  a  book  account.  It  comes  within  the 
provision  of  that  part  of  the  statute  which  permits  "other  matters 
properly  chargeable  in  an  account""  to  be  admitted  in  evidence,  and 
it  does  not  fall  within  the  inhibition  that  "cash  items  are  not  prop- 
erly so  chargeable."  We  are  of  the  opinion,  as  between  a  bank  and  a 
depositor,  that  a  book  of  original  entries  regularly  and  fairly  kept, 
containing  cash  items  of  the  account  of  the  depositor  with  the  bank, 
may,  under  the  provisions  of  the  statute,  be  admitted  in  evidence  to 
charge  the  depositor  with  the  items.  We  overrule  the  objection  and 
admit  the  book  in  evidence. 

Notes.  The  rules  of  evidence  pertaining  to  account-book  entries  and 
entries  made  in  the  regular  course  of  business  have  some  features  In  com- 
^mon,  but  they  are  not  at  all  synonymous.  They  are  closely  allied  In  prin- 
ciple and  probably  are  traceable  to  a  common  origin,  but  their  historical 
development  has  been  quite  different.  Moreover,  the  rule  of  evidence  per- 
taining to  the  former  had  Its  origin  nearly  a  century  before  the  rule  per- 
taining to  the  latter.  And  both  of  these  rules,  as  previously  stated  In  a 
foot-note,  originated  before  the  rule  against  hearsay. 

Account-book  entries  are  Inadmissible  in  a  suit  between  strangers, 
whereas  entries  made  in  the  regular  course  of  business  are  admissible. 

The  historical  development  of  the  rule  relating  to  account-book  entries 
has  been  quite  different  in  this  country  from  that  which  has  obtained  in 
England. 


Declarations  in  Course  of  Business  365 

decivarations  in  regular  course  of  business.1 

MAYOR  OF  N.  Y.  v.  SECOND  AVE.  R.  R.  CO. 
102  N.  Y.  572.     (1886) 

This  action  was  brought  to  recover  damages  for  an  alleged  breach 
of  contract. 

Defendant,  having  obtained  permission  to  lay  its  railroad  with  a 
double  track  over  portions  of  certain  streets  in  the  city  of  New  York, 
entered  into  a  contract  with  the  city  by  which  it  covenanted  among 
other  things  "that  the  said  company  shall  pave  the  streets  in  and 
about  the  rails  in  a  permanent  manner  and  keep  the  same  in  repair 
to  the  entire  satisfaction  of  the  street  commissioner."  Defendant 
failed  to  keep  one  of  the  streets  covered  by  the  contract  in  repair. 
Notice  of  the  condition  of  the  street  and  that  if  it  did  not  within 
thirty  days  thereafter  repair  the  same,  the  department  of  public 
works  would  make  the  necessary  repairs  and  defendant  would  be 
held  responsible  for  the  expense  was  served  upon  the  defendant.  It 
having  failed  to  comply  with  the  notice,  the  work  was  done  by  the  de- 
partment and  the  expense  thereof  plaintiff  claimed  to  recover  herein. 

Andrews,  J.  There  was  no  evidence  showing  that  the  charge  for 
labor  in  the  account  of  the  city  was  excessive,  or  that  more  laborers 
or  materials  were  provided  than  were  reasonably  required.  We  are 
of  opinion,  therefore,  that  the  direction  of  the  verdict  for  the  sum 
actually  expended  by  the  city,  in  making  the  repairs,  was  not  error. 

A  more  serious  question  is  raised  by  exceptions  to  the  admission 
in  evidence  of  a  time-book  kept  by  one  John  B.  Wilt,  and  of  a  writ- 
ten memorandum  or  account  made  by  him,  offered  to  prove  the 
number  of  days'  work  performed  and  the  quantity  of  material  used. 
Wilt  was  a  foreman,  in  the  employ  of  the  department  t)f  public  works, 
and  had  general  charge  of  the  repairs  in  question.  Under  him  were 
two  gang  foremen,  or  head  pavers,  Patrick  Madden  and  Charles 
Coughlan,  each  having  charge  of  a  separate  gang  of  about  ten  men 
employed  on  the  work.  Wilt  kept  a  time-book,  in  which  was  entered 
the  name  of  each  man  employed.  He  visited  the  work  twice  a  day, 
in  the  morning  and  afternoon,  remaining  from  a  few  minutes  to 
half  an  hour  each  time,  and  he  testified  that  while  there  he  checked 
on  the  time-book  the  time  of  each  man,  as  reported  to  him  by   *he 


Kughes  on  Evidence,  p.  117. 


366  Cases  on  Evidence 

gang  foremen.  He  also  testified  that  he  marked  the  men's  names  as 
he  saw  them,  and  that  he  knew  tlieir  faces.  The  gang  foremen  did 
not  see  the  entries  made  by  Wilt,  but  they  testified  that  they  cor- 
rectly reported  to  him  each  day  the  names  of  the  men  who  worked, 
and  if  any  did  not  work  full  time,  they  reported  that  fact  also.  Upon 
this  proof,  the  trial  judge  admitted  the  time-bopk  in  evidence,  against 
the  objection  of  the  defendant.  The  trial  judge  also  admitted  in 
evidence,  under  like  objection  a  written  memorandum  or  account, 
in  the  handwriting  of  Wilt,  of  materials  used.  Wilt  testified  that  the 
entries  in  the  account  were  made  from  daily  information  furnished 
by  the  gang  foremen,  on  the  occasions  of  his  visiting  the  work  and 
that  he  correctly  entered  the  amounts  as  reported.  It  does  not  appear 
that  he  had  any  personal  knowledge  of  the  matters  to  which  the 
entries  related.  The  gang  foremen  were  called  as  witnesses  in  sup- 
port of  the  account.  Neither  of  them  saw  the  entries,  and  on  the 
trial  neither  claimed  to  have  any  present  recollection  of  the  specific 
amounts  so  reported  by  them.  Madden  testified  that  he  reported  the 
correct  amounts  to  Wilt,  and  it  is  inferable  from  his  evidence  that 
when  the  reports  were  made,  he  had  personal  knowledge  of  the  facts 
reported.  Coughlan  also  testified  in  general  terms  that  he  reported 
the  items  correctly.  But  on  further  examination  it  appeared  that  his 
reports  to  Wilt  of  the  stone  delivered  at  the  work,  were  made  upon 
information  derived  by  him  from  the  carmen  who  drew  the  stone, 
and  who  counted  them,  and  who  reported  the  count  to  Coughlan, 
who  in  turn  reported  to  Wilt.  Coughlan  saw  the  carmen  dump  the 
stone,  but  he  did  not  verify  the  count,  but  appears  to  have  assumed 
its  correctness.  The  carmen  who  delivered  the  stone  were  not  called 
as  witnesses. 

The  exception  to  the  admission  of  the  time-book  presents  a  ques- 
tion of  considerable  practical  importance.  The  ultimate  fact  sought 
to  be  proved  on  this  branch  of  the  case,  was  the  number  of  day's 
labor  performed  in  making  the  repairs.  The  time-book  was  not  ad- 
missible as  a  memorandum  of  facts  known  to  Wilt  and  verified  by 
him.  His  observation  of  the  men  at  work  was  casual,  and  it  cannot 
be  inferred  that  he  had  personal  knowledge  of  the  amount  of  labor 
performed.  His  knowledge,  from  personal  observation,  was  mani- 
festly incomplete,  and  the  time-book  was  made  up,  mainly,  at  least, 
from  the  reports  of  the  gang  foremen.  The  time-book  was  clearly  not 
admissible  upon  the  testimony  either  of  the  gang  foremen,  or  of  Wilt, 
separately  considered.  The  gang  foremen  knew  the  facts  they  re- 
ported to  Wilt,  to  be  true,  but  they  did  not  see  the  entries  made,  and 


Declarations  in  Course  of  Business  367 

could  not  verify  their  correctness.  Wilt  did  not  make  the  entries 
upon  his  own  knowledge  of  the  facts,  but  from  the  reports  of  the  gang 
foremen.  Standing  upon  his  testimony,  alone,  the  entries  were  mere 
hearsay.  But  combining  the  testimony  of  Wilt  and  the  gang  fore- 
men there  was,  first,  original  evidence  that  laborers  were  employed, 
and  that  their  time  was  correctly  reported  by  the  persons  who  had 
personal  knowledge  of  the  facts,  and  that  their  reports  were  made  in 
the  ordinary  course  of  business  and  in  accordance  with  the  duty  of 
the  persons  making  them,  and  in  point  of  time  were  contempora- 
neous with  the  transactions,  to  which  the  reports  related;  and  second, 
evidence  by  the  person  who  received  the  reports,  that  he  correctly 
entered  them  as  reported,  in  the  time-book,  in  the  usual  course  of  his 
business  and  duty.  It  is  objected  that  this  evidence  taken  together, 
is  incompetent  to  prove  the  ultimate  fact,  and  amounts  to  nothing 
more  than  hearsay.  If  the  witnesses  are  beHeved,  there  can  be  but 
little  moral  doubt  that  the  book  is  a  true  record  of  the  actual  fact. 
There  could  be  no  doubt  whatever,  except  one  arising  from  infirmity 
of  memory,  or  mistake,  or  fraud.  The  gang  foremen  may  by  mis- 
take or  fraud,  have  misreported  to  Wilt,  and  Wilt  may  either  inten- 
tionally or  unintentionally  have  made  entries  not  in  accordance  with 
the  reports  of  the  gang  foremen.  But  the  possibility  of  mistake  or 
fraud  on  the  part  of  witnesses,  exists  in  all  cases  and  in  respect  to 
any  kind  of  oral  evidence.  The  question  arises,  must  a  material, 
utimate  fact  be  proved  by  the  evidence  of  a  witness  who  knew  the 
fact  and  can  recall  it,  or,  who,  having  no  personal  recollection  of  the 
fact  at  the  time  of  his  examination  as  a  witness,  testifies  that  he 
made,  or  saw  made  an  entry  of  the  fact  at  the  time,  or  recently  there- 
after, which  on  being  produced,  he  can  verify  as  the  entry  he  made 
or  saw,  and  that  he  knew  the  entry  to  be  true  when  made,  or  may 
such  ultimate  fact  be  proved  by  showing  by  a  witness  that  he  knew 
the  facts  in  relation  to  the  matter  which  is  the  subject  of  investigation, 
and  communicated  them  to  another  at  the  time,  but  had  forgotten 
them,  and  supplementing  this  testimony  by  that  of  the  persons  receiv- 
ing the  communication  to  the  effect  that  he  entered  at  the  time,  the 
facts  communicated  and  by  the  production  of  the  book  or  memoran- 
dum in  which  the  entries  were  made.  The  admissibility  of  memo- 
randa of  the  first  class  is  well  settled.  They  are  admitted  in  con- 
nection with,  and  as  auxiliary  to  the  oral  evidence  of  the  witness  and 
this  whether  the  witness,  on  seeing  the  entries,  recalls  the  facts,  or 
can  only  verify  the  entries  as  a  true  record  made  or  seen  by  him  at, 


368  Cases  on  Evidence; 

or  soon  after  the  transaction  to  which  it  relates.     (Halsey  v.  Sinse- 
baugh,  15  N.  Y.  485;  Guy  v.  Mead,  22  id.  462.) 

The  other  branch  of  the  inquiry  has  not  been  very  distinctly  adju- 
dicated in  this  State,  although  the  admissibility  of  entries  made  under 
circumstances  like  those  in  this  case  was  apparently  approved  in 
Payne  v.  Hodge  (71  N.  Y.  598).  We  are  of  opinion  that  the  rule  as 
to  the  admissibility  of  memoranda  may  properly  be  extended  so  as 
to  embrace  the  case  before  us.  The  case  is  of  an  account  kept  in 
the  ordinary  course  of  business,  of  laborers  employed  in  the  prose- 
cution of  work,  based  upon  daily  reports  of  foremen  who  had  charge 
of  the  men,  and  who,  in  accordance  with  their  duty,  reported  the  time 
to  another  subordinate  of  the  same  common  master,  but  of  a  higher 
grade,  who,  in  time,  also  in  accordance  with  his  duty,  entered  the 
time  as  reported.  We  think  entries  so  made,  with  the  evidence  of  the 
foremen  that  they  made  true  reports,  and  of  the  person  who  made 
the  entries  that  he  correctly  entered  them,  are  admissible.  It  is  sub- 
stantially by  this  method  of  accounts,  that  business  transactions  in 
numerous  cases  are  authenticated,  and  business  could  not  be  carried 
on  and  accounts  kept  in  many  cases,  without  great  inconvenience, 
unless  this  method  of  keeping  and  proving  accounts  is  sanctioned. 
In  a  business  where  many  laborers  are  employed,  the  accounts  must, 
in  most  cases,  of  necessity,  be  kept  by  a  person  not  personally  cog- 
nizant of  the  facts,  and  from  reports  made  by  others.  The  person 
in  charge  of  the  laborers  knows  the  fact,  but  he  may  not  have  the 
skill  or  for  other  reasons,  it  may  be  inconvenient  that  he  should  keep 
the  account.  It  may  be  assumed  that  a  system  of  accounts  based 
upon  substantially  the  same  methods  as  the  accounts  in  this  case,  is 
in  accordance  with  the  usages  of  business.  In  admitting  an  account 
verified,  as  was  the  account  here,  there  is  little  danger  of  mistake, 
and  the  admission  of  such  an  account  as  legal  evidence  is  often 
necessary  to  prevent  a  failure  of  justice.  We  are  of  opinion,  how- 
ever, that  it  is  a  proper  qualification  of  the  rule  admitting  such  evi- 
dence, that  the  account  must  have  been  made  in  the  ordinary  course 
of  business,  and  that  it  should  not  be  extended  so  as  to  admit  a  mere 
private  memorandum,  not  made  in  pursuance  of  any  duty  owing  by 
the  person  making  it,  or  when  made  upon  information  derived  from 
another  who  made  the  communication  casually  and  voluntarily,  and 
not  under  the  sanction  of  duty  or  other  obligation.  The  case  before 
us  is  within  the  qualification  suggested.  In  Peck  v.  Valentine  (94 
N,  Y.  569),  the  memorandum  there  admitted  was  not  an  original 
memorandum,  but  a  copy  of  a  private  memorandum  made  by  an  em- 


Declarations  in  Course  of  Business  369 

ploye  of  the  plaintiff  for  his  own  purposes,  and  not  in  the  course  of 
his  duty,  or  in  the  ordinary  course  of  business.  The  original  memo- 
randum was  delivered  by  the  one  who  made  it,  to  the  plaintiff,  who 
lost  it,  but  testified  that  the  paper  produced  and  received  in  evidence 
was  a  copy.  The  person  who  made  the  original  memorandum  was 
unable  to  verify  the  copy.  The  court  held  that  the  copy  was  im- 
properly admitted  in  evidence.  The  decision  in  Peck  v.  Valentine 
rests  upon  quite  different  facts  from  those  in  this  case. 

In  respect  to  the  admission  of  the  account  of  material,  we  think 
that  part  of  the  account  based  upon  the  reports  of  Madden  was 
admissible  on  the  same  ground  upon  which  we  have  justified  the 
admission  of  the  time-book.  Madden,  in  substance  testified  that  he 
knew  the  facts  and  properly  reported  them,  and  Wilt  testified  that 
he  entered  them  as  reported.  The  part  of  the  account  of  materials, 
the  items  of  which  were  furnished  by  Coughlan,  was  not  strictly 
admissible.  Coughlan  does  not  appear  to  have  had  personal  knowl- 
edge of  the  quantity  of  stone  delivered  on  his  part, of  the  work,  but 
took  the  count  of  the  carman,  and  his  reports  to  Wilt  were  based 
upon  the  reports  of  the  carman  to  him.  The  carman  was  not  called, 
and  the  evidence  of  Wilt  and  Coughlan  was  mere  hearsay.  If  the 
attention  of  the  court  had  been  called  by  the  defendant  to  this  part  of 
the  account,  and  the  objection  had  been  specifically  taken  to  the 
items  entered  upon  the  reports  of  Coughlan,  the  objection  would,  we 
think,  have  been  valid.  But  the  objection  was  a  general  objection 
to  the  whole  account.  It  was  clearly  admissible  as  to  the  items  re- 
ported by  Madden,  and,  we  think  the  general  objection  and  exception 
is  not  available  to  raise  the  question  as  to  the  admissibility  of  the 
items  entered  on  the  report  of  Coughlan,  independently  of  the  others. 
The  whole  amount  of  materials  embraced  in  the  recovery  was  small, 
and,  we  think,  no  injustice  will  be  done  by  affirming  the  judgment. 

The  judgment  should  therefore  be  affirmed. 

All  concur. 

Judgment  affirmed.' 


3/0  Cases  on  Evidence 

FIREMEN'S  INS.  CO.  et  al.  v.  SEABOARD  AIR  LINE  RY. 
50  S.  B.  452  (N.  C).    (1905) 

Plaintiffs  alleged  that  on  the  19th  day  of  October,  1902,  certain 
cotton,  upon  which  plaintiff  companies  had  issued  policies  of  insur- 
ance was  burned  by  the  negligence  of  the  defendant's  agents  and  serv- 
ants; that,  by  reason  of  the  destruction  of  said  cotton,  plaintiffs  were 
compelled  to  pay  the  value  thereof;  that  the  owners  of  said  cotton 
transferred  and  assigned  to  the  plaintiffs  all  rights  of  action  which 
they  had  against  the  defendant  company  for  the  negligent  burning 
thereof.  Defendants  denied  the  material  allegations  in  the  complaint. 
The  parties  went  to  trial  upon  the  following  issues:  "i.  Was  the 
property  of  the  Hamlet  Ice  Company  insured  by  the  plaintiffs,  as 
alleged  in  the  complaint  at  the  time  it  was  burned?  Answer.  "No." 
(2)  Was  the  said  property  burned  by  the  negligence  of  the  defendant 
company,  as  alleged  in  the  complaint?  Answer.  "No."  From  a 
judgment  upon  the  verdict  the  plaintiffs  appealed. 

Connor,  J.  (after  stating  the  facts).  In  the  trial  of  this  cause 
It  became  material  to  show  at  what  time  the  defendant's  wrecking 
train  No.  371  reached  Hamlet,  the  station  on  defendant's  road  at 
which  the  cotton  was  burned.  Defendant  introduced  one  C.  Lane, 
who  testified  that  he  was  employed  by  the  defendant  road  as  train 
dispatcher  to  keep  a  record  of  the  arrival  and  departure  of  all  trains 
at  all  telegraph  stations,  that  the  record  was  made  and  kept  on  the 
train  sheet;  at  the  time  trains  arrived  at  and  left  stations,  the  oper- 
ator at  such  station  notified  the  dispatcher,  who  immediately  re- 
corded the  time  on  the  sheet  as  it  was  reported  to  him;  that  such 
sheet  constituted  a  record  of  the  arrival  and  departure  of  all  trains; 
that  he  governed  the  movements  of  trains  by  such  record  of  the 
arrival  and  departure  of  trains;  that  on  the  19th  of  October,  1902, 
the  offical  report  was  sent  him,  and  that  he  immediately  recorded 
thereon  the  time  of  the  arrival  of  the  extra  train,  which  was  the 
wrecking  train  at  Hamlet  of  that  date;  and  that  he  had  the  record 
before  him.  The  defendant  then  offered  the  record  in  evidence,  for 
the  purpose  of  showing  the  time  of  the  arrival  of  the  wrecking  train 
at  Hamlet,  which  witness  McDonald  testified  was  taken  charge  of 
by  shifting  engine  No.  371  on  its  arrival.  (Objection.)  The  court 
ruled  that  the  witness  could  refresh  his  recollection  by  an  inspection 
of  the  record,  enabling  him  to  speak  touching  his  own  acts  at  the 
time  with  regard  to  the  matter  under  inquiry,  which  at  that  time 


Deci^arations  in  Course  of  Business  371 

ruled  out  the  declaration  which  any  other  agent  of  the  company  made 
to  him  at  the  time,  by  wire  or  otherwise.  The  witness  stated  that 
he  could  not  state  of  his  own  personal  knowledge  the  time  at  which 
the  wrecking  train  arrived  at  Hamlet.  The  court  admitted  the  rec- 
ord in  evidence,  showed  the  entries  made  to  him  by  wire  from  the 
agent  of  the  defendant  at  Hamlet  as  to  the  arrival  and  departure  of 
said  wrecking  train,  to  which  the  plaintiff  duly  excepted.  Defendant 
also  introduced  one  J.  W.  Hunt,  who  testified  that  he  was  employed 
by  defendant  company  as  conductor,  and  that  as  such  he  ran  wreck- 
ing train  on  October  19,  1902,  from  Raleigh  to  Hamlet ;  that  it  arrived 
at  Hamlet  at  12:37  ^-  m.  Witness  is  then  shown  a  book  which  he 
identifies  as  a  register  showing  the  time  of  arrival,  which  he  says  is 
kept  at  Hamlet;  that  it  was  his  duty  to  register  the  arrival  of  the 
train,  and  that  he  did  register  it  on  that  day.  He  identifies  the  entry 
in  his  own  handwriting:  "Extra  train.  Time  arrival,  12:37  P-  ^^•" 
Signed  by  him  and  also  by  engineman.  This  last  recqrd  was  oflfered 
by  defendant  in  corroboration  of  witness  Plunt,  and  the  court  ad- 
mitted it  for  that  purpose,  so  instructing  the  jury. 

It  is  contended  by  the  plaintiffs  that  the  "train  sheets"  are  not 
admissible,  because,  while  containing  entries  made  by  the  train  dis- 
patcher in  the  usual  course  of  business,  he  had  no  personal  knowledge 
of  the  truth  of  the  statements  recorded;  that  he  simply  recorded 
information  derived  from  the  operator  at  Hamlet,  a  hundred  or  more 
miles  from  Raleigh.  This,  they  say,  is  but  hearsay.  The  defendant, 
on  the  other  hand  contends  that  the  entry  made  by  the  train  dis- 
patcher, although  based  upon  information  derived  from  the  operator, 
by  reason  of  the  circumstances  under  and  the  manner  in  which  the 
information  was  communicated,  is  surrounded  by  all  possible  safe- 
guards against  error,  uncertainty,  or  falsehood,  and  therefore  comes 
within  the  exception  to  the  general  rule  excluding  hearsay  evidence. 
The  question  is  of  first  impression  in  this  state.  We  have  given  it 
careful  and  anxious  consideration,  desiring  to  make  no  departure 
from  the  well-settled  principles  of  the  law  of  evidence  or  the  decisions 
of  this  court,  at  the  same  time  recognizing  and  keeping  in  view  the 
duty  of  the  court  to  make  diligent  effort  to  find  in  those  general 
principles  such  safe  and  reasonable  adaptability  that  in  the  changing 
conditions  of  social,  commercial,  and  industrial  life  there  may  be  no 
wide  divergence  in  the  decisions  from  the  standards  by  which  men 
are  guided  and  controlled  in  important  practical  afifairs. 

Among  the  exceptions  to  the  general  rule  we  find  "entries  and 
declarations  of  third  parties  made  in  the  regular  course  of  duties  or 


372  Cases  on  Evidknce 

business."  Such  entries  are  of  two  kinds :  First,  tho^e  made  by  the 
entrant  respecting  a  transaction  conducted  by  or  matter  known  to 
him  personally,  in  which  no  other  person  has  taken  any  part.  Second, 
those,  made  by  the  entrant  upon  information  communicated  to  him 
by  some  other  person  acting  in  the  line  of  his  duty  to  make  report 
to  him.  The  entries  made  by  the  train  dispatcher  fall  within  this 
rule.  It  is  undoubtedly  the  general  rule  that,  if  the  entrant  and  the 
person  making  the  report  upon  which  the  entry  is  made  are  both 
living  and  available,  they  should  be  produced  to  testify  to  the  truth 
of  the  subject-matter  of  the  entry;  that  if  one  be  dead  or  unavailable 
— that  is,  insane  or  beyond  the  process  of  the  court — the  entry  may  be 
introduced  upon  the  testimony  as  to  its  authenticity  of  the  living, 
available  person.  Can  the  entry  be  admitted  when,  as  in  the  case 
before  us,  the  entrant  is  living,  and  the  person  upon  whose  report 
the  entry  is  made  is  not  produced  nor  his  absence  accounted  for? 

An  examination  of  the  decided  cases  discovers  a  conflict  of  author- 
ity. Prof.  Wigmore  suggests  that  when  an  entry  is  made  in  the 
usual  course  of  business,  based  upon  reports  made  by  one  whose 
duty  it  is  to  make  such  report,  but  who  is  not  required  to  make  and 
keep  any  record  of  the  transaction,  the  entry  so  made  is  admissible 
upon  the  ground  of  necessity,  growing  out  of  the  fact  that  it  is  not 
to  be  expected  that  the  person  making  such  report  would  remember 
the  fact  reported,  and  that  he  is  therefore  unavailable  in  a  legal 
sense.  It  is  not  to  be  expected  that  an  operator,  who  reports  to  the 
despatcher  the  time  of  arrival  and  departure  of  a  number  of  trains 
daily,  could  undertake  to  testify  from  memory  the  hour  and  minute 
of  each  arrival  or  departure.  He  has  no  duty  imposed  upon  him  to 
do  so.  If  he  did  undertake  to  testify,  as  in  this  case,  three  years 
after  the  event,  but  little  credence  would  be  attached  to  his  testimony. 
For  practical  purposes,  he  is  as  essentially  unavailable  as  if  dead  or 
insane.  We  are  of  the  opinion  that,  applying  either  test,  trustworthi- 
ness or  necessity,  the  entries  made  on  the  trains'  sheets  were  ad- 
missible. 

Affirmed. 


Declarations  Part  of  Re;s  Gestae  373 

DECLARATIONS  FORMING  PART  OF  OR  RELATING  TO  THE 
RES  GESTAE.i 

COMMONWEALTH  v.  TREFETHEN. 
15"^  Mass.  180.     (18^2) 

Indictment,  in  four  counts,  for  the  murder  of  Deltena  J.  Davis, 
on  December  23,  189 1,  by  drowning. 

At  the  trial  in  the  Superior  Court,  before  Mason,  C.  J.,  and  Blod- 
gett  and  Hammond,  JJ.,  the  jury  returned  a  verdict  of  guilty  of 
murder  in  the  first  degree  against  the  defendant,  Trefethen,  and  a 
verdict  of  not  guilty  for  the  defendant  Smith;  and  Trefethen  alleged 
exceptions. 

Field,  C.  J.  The  principal  exception  is  to  the  refusal  of  the 
court  to  admit  the  testimony  of  Sarah  L.  Hubert.  The  exceptions 
recite : 

"Sarah  L.  Hubert,  as  witness  called  in  behalf  of  the  defendant, 
testified  that  her  business,  which  she  advertised  in  the  newspapers, 
was  that  of  a  trance  medium;  that  on  December  22,  1891,  in  the 
forenoon,  after  ten  o'clock,  a  young  woman  called  at  her  place  of 
business  in  Boston  for  consultation.  There  was  sufficient  evidence 
to  go  to  the  jury  of  her  identification  as  Deltena  J.  Davis.  Upon  ob- 
jection being  made  to  the  testimony  of  this  witness,  counsel  for  the 
defendant  stated  to  the  court,  aside  from  the  jury,  that  they  ofifered 
to  prove  by  this  witness  that,  at  the  interview  on  December  22,  the 
young  woman  aforesaid  stated  to  the  witness  that  she  was  five  months 
pregnant  with  child,  and  had  come  to  consult  as  to  what  to  do,  and 
added  later  in  the  interview  that  she  was  going  to  drown  herself. 
The  court  refused  to  admit  the  testimony,  and  the  defendants  duly 
excepted. 

When  evidence  of  declarations  of  any  person  is  offered  for  the 
purpose  of  showing  the  state  of  mind  or  intention  of  that  person  at 
the  time  the  declarations  were  made,  the  declarations  undoubtedly 
"may  be  so  remote  in  point  of  time,  or  so  altered  in  import  by  sub- 
sequent change  in  the  circumstances  of  the  maker,  as  to  be  wholly 
immaterial,  and  wisely  to  be  rejected  by  the  judge."  Shailer  v.  Bum- 
stead,  99  Mass.  112,  120. 

In  the  case  at  bar,  the  evidence  offered  was  that  the  declaration 
of  the  deceased  was  made  the  day  before  her  death,  and  was  made 
in  a  conversation  concerning  her  pregnancy,  which  continued   until 


iHughcB  on  Evidence,  pp.  123  and  134. 


I 


374  Cases  on  EvroENce 

her  death.  The  declaration,  therefore,  was  not  made  at  a  time  remote 
from  the  time  of  her  death,  and  there  had  been  no  change  of  circum- 
stances which  made  it  inappHcable  to  the  condition  of  the  deceased 
at  the  time  of  her  death.  It  was  clearly  competent  for  the  jury  to 
find  from  the  evidence  recited  in  the  exceptions,  that,  if  Deltena  J. 
Davis  had  an  intention  to  commit  suicide  on  December  22,  she  con- 
tinued to  have  the  same  intention  December  23.  If  the  evidence  in 
its  nature  was  admissible,  the  court,  on  the  facts  stated,  could  not 
exclude  it  on  the  ground  that,  from  the  lapse  of  time  or  change  of 
circumstances,  it  had  ceased  to  be  material. 

The  fundamental  proposition  is,  that  an  intention  in  the  mind  of 
a  person  can  only  be  shown  by  some  external  manifestation,  which 
must  be  some  look  or  appearance  of  the  face  or  body,  or  some  act 
or  speech;  and  that  proof  of  either  or  all  of  these  for  the  sole  pur- 
pose of  showing  state  of  mind  or  intention  of  the  person  is  proof  of 
a  fact  from  which  the  state  of  mind  or  intention  may  be  inferred. 

On  principle,  therefore,  we  think  it  clear  that,  when  evidence  of 
the  declarations  of  a  person  is  introduced  solely  for  the  purpose  of 
showing  what  the  state  of  mind  or  intention  of  that  person  was  at 
the  time  the  declarations  were  made,  the  declarations  are  to  be 
regarded  as  acts  from  which  the  state  of  mind  or  intention  may  be 
inferred  in  the  same  manner  as  from  the  appearance  of  the  person 
or  his  behavior,  or  his  actions  generally.  In  the  present  case  the 
declaration,  evidence  of  which  was  offered,  contained  nothing  in  the 
nature  of  narrative,  and  was  significant  only  as  showing  the  state  of 
mind  or  intention  of  the  deceased. 

Verdict  against  Trefethen  set  aside. 


WHELAN  V.  LYNCH. 
60  N.  Y.  469.     (1875) 


Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department,  reversing  a  judgment  in  favor  of  plain- 
tiff, entered  on  a  verdict,  and  reversing  an  order  denying  a  motion  for 
a  new  trial. 

This  action  was  brought  against  defendant  as  survivor  of  the  firm 
of  Smyth  &  Lynch,  to  recover  the  value  of  a  quantity  of  wool  con- 
signed by  plaintiff  to  that  firm  for  sale. 


Declarations  Part  of  Res  Gestae  375 

Upon  the  trial  plaintiff  offered,  and  the  court  received  in  evidence, 
under  objection  for  the  purpose  of  proving  market  value,  the  files 
of  a  newspaper  styled  the  "Shipping  and  Commercial  Lists  Price 
Current,"  which  purported  to  give  the  prices  of  different  grades  of 
wool. 

Miller,  J.  The  court,  upon  the  trial  of  this  action,  charged  the 
jury,  that  if  the  plaintiff  was  entitled  to  recover  at  all,  he  would  be 
entitled  to  the  highest  price  which  wool  of  the  description  had  reached 
in  the  market  between  October  24th,  1864,  and  the  time  when  the 
action  was  commenced,  and  the  defendant  duly  excepted  to  the 
charge. 

Independent  of  the  charge,  the  court  was  also  in  error,  I  think, 
in  admitting  the  Shipping  and  Price  Current  List  as  evidence  of  the 
value  of  the  wool,  without  some  proof  showing  how  or  in  what  man- 
ner it  was  made  up;  where  the  information  is  contained  was  obtained, 
or  whether  the  quotations  of  prices  made  were  derived  from  actual 
sales,  or  otherwise.  It  is  not  plain  how,  a  newspaper,  containing 
the  price  current  of  merchandise,  of  itself,  and  aside  from  any  ex- 
planation as  to  the  authority  from  which  it  was  obtained,  can  be  made 
legitimate  evidence  of  the  facts  stated.  The  accuracy  and  correctness 
of  such  publications  depend  entirely  upon  the  sources  from  which  the 
information  is  derived.  Mere  quotations  from  other  newspapers,  or 
information  obtained  from  those  who  have  not  the  means  of  procur- 
ing it,  would  be  entitled  to  little  if  any  weight.  The  credit  to  be  given 
to  such  testimony  must  be  governed  by  extrinsic  evidence,  and  cannot 
be  determined  by  the  newspaper  itself  without  some  proof  of  knowl- 
edge of  the  mode  in  which  the  list  was  made  out.  As  there  was  no 
such  testimony,  the  evidence  was  entirely  incompetent,  and  should  not 
have  been  received.  The  authorities  cited  to  sustain  the  ruling  of  the 
judge  in  regard  to  the  admission  of  this  evidence,  do  not  include  any 
such  case. 

In  Lush  v.  Druse  (4  Wend.  314),  the  witness  who  testified  as  to 
the  market  price,  had  inquired  of  merchants  dealing  in  the  article, 
and  examined  their  books;  thus  giving  the  source  of  his  knowledge. 
In  Terry  v.  McNiel  (58  Barb.  241),  it  does  not  appear  in  what  form 
the  question  was  presented,  or  whether  any  preliminary  evidence  had 
been  introduced  to  show  the  accuracy  of  the  newspaper  quotations. 
In  Cliquot's  Champagne  (3  Wallace  117),  it  appeared  that  the  price 
current  was  procured  directly  from  dealers  in  the  article  and  was 
verified  by  testimony  which  tended  to  show  its  accuracy.    The  objec- 


376  Cases  on  Evidence 

tions  made  to  the  evidence  were  sufficient,  and  its  admissibility  can- 
not be  upheld  within  these  cases  cited. 

Without  examining  the  other  questions  for  the  errors  stated,  the 
order  of  the  General  Term  must  be  affirmed,  and,  in  pursuance  of 
the  stipulation  of  the  plaintiff's  attorneys,  judgment  absolute  ordered 
for  the  defendant  with  costs. 

All  concur;  Church,  C.  J.,  and  Folger,  J.,  in  result. 

Order  affirmed  and  judgment  accordingly. 


WRIGHT  V.  STATE. 
88  Md.  /03.     (1898) 


Boyd,  J,  The  appellant  was  convicted  of  murder  in  the  first  degree 
in  the  Circuit  Court  for  Talbot  county,  to  which  county  the  case  was 
removed  from  Kent  county  where  the  homicide  occurred.  Although 
the  record  sets  out  at  some  length  the  proceedings  in  the  cause,  there 
is  but  one  question  presented  by  it,  and  that  is  the  ruling  of  the  court 
below  on  an  objection  made  by  the  State  to  the  offer  to  prove  by  one 
Joseph  Johnson  a  statement  made  to  him  by  the  prisoner  shortly  after 
the  shooting  of  the  deceased,  William  Newcomb.  It  is  contended  on 
behalf  of  the  appellant  that  the  statement  was  made  under  such  cir- 
cumstances and  at  such  a  time  as  to  be  part  of  the  res  gestae  and 
that  is  denied  by  the  State.  The  record  does  not  disclose  what  the 
statement  was,  but  the  court  refused  to  admit  it. 

No  inflexible  rule  can  be  adopted  as  to  what  lapse  of  time  between 
the  commission  of  an  act  and  a  declaration  made,  should  exclude  the 
declaration  as  not  being  a  part  of  the  res  gestae.  Each  case  must  de- 
pend upon  its  own  facts  and  circumstances.  The  act  or  declaration 
sought  to  be  proven  must,  however,  be  so  connected  with  the  trans- 
action as  to  be  a  part  of  it  and  great  care  should  be  exercised  by  the 
courts  to  prevent  abuse  of  the  rule  that  admits  in  evidence,  undei- 
proper  conditions,  the  unsworn  statement  of  an  accuser  or  an  accused 
in  his  own  favor.  They  should  be  certain  that  such  statements  are 
not  the  result  of  premeditation,  design  or  effort  to  inculpate  another  or 
to  excuse  one's  self.  In  21  Ency.  of  Law,  iii,  the  rule  is  thus  stated : 
"Acts  or  declarations  unconsciously  associated  with  and  relative  to 
the  principal  act  charged  as  an  offense  against  the  accused  from  its 
inception  to  its  consummation  and  final  completion  are  admissible  as 


Declarations  Part  of  Res  Gestae  377 

part  of  the  res  gestae;  but  declarations  made  after  all  actions  on  the 
part  of  the  wrongdoer,  actual  or  constructive,  has  ceased,  or  declara- 
tions made  before  the  commission  of  the  offense  and  entirely  dis- 
connected therewith,  are  not  part  of  the  res  gestae  and  should  not  be 
admitted."  Mr.  Wharton  in  his  work  on  Criminal  Evidence,  section 
262  says:  "Res  gestae  are  events  speaking  for  themselves,  through 
the  instinctive  words  and  acts  of  participants,  not  the  words  and  acts 
of  participants  when  narrating  the  events.  What  is  done  or  said  by 
participants,  under  the  immediate  spur  of  a  transaction  becomes  thus 
part  of  the  transaction,  because  it  is  then  the  transaction  that  thus 
speaks." 

In  this  case  we  find  that  immediately  after  the  shooting,  the  pris- 
oner ran  out  of  the  store  where  it  took  place,  and  then  as  soon  as 
the  witness  Johnson  satisfied  himself  that  Newcomb  was  dead,  he 
became  frightened  and  also  ran  out  of  the  store,  and  as  he  did  so 
the  prisoner  was  under  a  tree  near  the  store  "hollering  and  whoop- 
ing." The  witness  went  into  a  lot  behind  a  house  on  the  opposite 
side  of  the  road  and  says  he  remained  there  about  a  minute  and  a  half 
and  then  gave  this  account  of  what  took  place :  "When  I  was  in  the 
lot  I  was  out  'of  sight  of  the  prisoner ;  /  staid  in  the  lot  until  I  got 
over  my  scare  or  excitement,  and  thought  it  over,  and  thought  I  had 
better  go  to  the  festival  at  the  church  (which  was  nearby),  and  tell 
the  people  there  about  the  shooting;  when  I  came  out  of  the  lot  and 
talked  with  the  prisoner  Wright;  it  was  I  suppose  not  over  five 
minutes  after  the  shooting,  it  was  not  long;  I  was  in  the  lot  about  a 
minute  and  a  half;  when  I  came  out  the  prisoner  had  stopped  'hol- 
lering and  whooping;  he  was  by  himself;  he  was  about  twenty-five 
or  thirty  yards  from  me  when  I  came  out  of  the  lot  and  I  went 
straight  up  to  him  and  had  a  talk  with  him  (the  prisoner)  about  the 
shooting  of  Newcomb,  when  the  prisoner  made  a  statement  to  witness 
about  the  shooting." 

Thus  we  see  that  the  witness  had  time  to  get  over  his  "scare  or 
excitement"  and  to  think  the  matter  over.  The  prisoner  had  then 
stopped  "hollering  and  whooping"  and  according  to  his  own  testi- 
mony he  was  going  to  the  festival.  He  had  been  on  the  stand  before 
Johnson  was  called  and  after  stating  he  was  drunk  and  that  he  did 
not  know  when  the  shooting  occurred  and  did  not  see  Newcomb  that 
night,  that  he  knew  of,  said,  "Joe  Johnson  first  told  me  that  I  had 
shot  Newcomb;  I  told  him  I  was  sorry;  I  do  not  know  whether  he 
told  me  at  the  festival  or  along  the  road  as  I  was  going  to  the  festival 
at  the  church" ;  Johnson  said  he  supposed  it  was  not  over  five  minutes 


378  C^ES  ON  Evidence 

after  the  shooting  when  he  talked  with  the  prisoner,  but  however 
that  may  have  been  both  Johnson  and  the  prisoner  evidently  had  time 
for  reflection  and  what  was  then  said  between  them  could  only  have 
been  a  narrative  of  the  events  and  was  not  a  part  of  the  transaction 
itself.  The  prisoner  had  run  out  of  the  store  immediately  after  the 
shooting,  had  stopped  outside  "hollering  and  whooping,"  but  had 
been  there  long  enough  to  stop  that  noise  and,  if  he  is  to  be  believed, 
he  was  either  at  the  church  festival  or  on  the  way  there  when  he 
had  the  conversation  with  Johnson.  Evidence  of  what  he  then  said 
was  clearly  not  admissible  as  part  of  the  res  gestae.  It  would  be  a 
most  dangerous  practice  to  admit  in  evidence  a  statement  made  by 
the  prisoner  under  such  circumstances  as  those  disclosed  by  this  rec- 
ord, and  one  that  cannot  be  sanctioned  by  this  State  even  if  there 
be  any  authority  for  it  elsewhere,  as  contended  by  the  appellant. 
There  being  no  other  exception,  the  judgment  must  be  afiirmed.  • 

Judgment  affirmed. 


SMITH  v.  N.  B.  SOCIETY. 
123  N.  V.  85.     (1890) 


Finch,  J.  The  facts  of  this  case  are  unusual  and  extraordinary. 
In  answer  to  the  plaintiff's  demand  for  the  sum  payable  by  the  de- 
fendant's policy  of  Irfe  insurance  the  company  took  upon  itself  the 
difficult  burden  of  proving  that  the  assured  perpetrated  a  deliberate 
fraud,  planned  upon  a  broad  scale,  and  accomplished  by  taking  his 
own  life;  that  his  efforts  to  achieve  success  failing,  and  a  future  of 
poverty  and  debt  seeming  to  await  him,  he  determined  to  secure  a 
large  insurance  upon  his  life,  appropriate  it  to  the  payment  of  his 
creditors  and  the  comfort  and  support  of  his  relatives,  and  reach  the 
result  by  suicide.  The  difficult  burden  was  successfully  borne,  as 
the  verdict  of  the  jury  has  determined,  and  the  sole  inquiry  now  is 
whether  the  scope  and  range  of  the  evidence  admitted,  showing  the 
acts  and  declarations  of  the  assured,  transcended  the  lawful  limit  or 
violated  the  rules  of  evidence. 

The  plaintiff  was  a  creditor  of  the  assured,  and  stands  in  the  case 
as  the  assignee  of  the  policy  from  the  date  of  its  transfer  to  him. 
He  describes,  as  a  witness,  the  manner  of  its  acquisition.  Tyler  owed 
him  about  $10,000,  and  upon  demand  of  payment  proposed  to  secure 


D^civARATioNS  Part  of  Res  Gestae  379 

the  debt  by  an  insurance  upon  his  life.  The  plaintiff  assented.  The 
conversation  was  in  December,  1885,  and  in  pursuance  of  the  agree- 
ment made,  the  policy  now  sued  on  was  executed  in  June  of  the  next 
year.  By  its  terms  the  defendant  constituted  Tyler  a  "benefit  mem- 
ber" of  the  "society,"  and  agreed  "to  pay  Fred  H.  Smith,  creditor,  if 
living,  if  not,  to  the  heirs  at  law  of  said  member"  the  sum  insured. 
The  plaintiff,  having  thus  become  the  owner  of  the  policy,  objected 
on  the  trial  to  proof  of  the  acts  and  declarations  of  Tyler  as  incom- 
petent to  affect  or  destroy  the  policy  transferred.  The  General  Term 
questioned  his  right,  considered  as  an  assignment  carrying  a  vested 
interest,  and  rely  upon  section  18  of  the  Laws  of  1883,  under  which 
the  defendant  company  was  organized:  That  section  attaches  the 
beneficial  interest  to  the  membership,  and  permits  the  member  to 
change  the  payee  or  beneficiary  of  the  insurance  without  the  latter's 
consent.  Where  the  right  of  the  payee  has  no  other  foundation  than 
the  bare  intent  of  the  member,  revocable  at  any  moment,  there  can 
be  no  vested  interest  in  the  named  beneficiary  any  more  than  in  the 
legatee  of  a  will  before  it  takes  effect.  But  the  statute  does  not 
prevent  a  contract  between  the  parties  by  force  of  which  a  vested 
interest  does  pass,  in  which  respect  the  present  case  differs  from  Hel- 
lenberg  v.  Dist.  No.  i  of  I.  O.  of  B.  B.  (94  N.  Y.  580).  There  the 
designation  was  in  the  nature  of  an  inchoate  or  unexecuted  gift,  re- 
vocable at  any  moment  by  the  donor,  and  remaining  wholly  within 
his  control.  Here  the  transfer  was  a  collateral  security  for  an  exist- 
ing debt,  and  the  fact  brou^t  to  the  knowledge  of  the  defendant 
company  which  explicitly  promised  to  pay  the  plaintiff  in  his  character 
as  creditor. 

Granting,  however,  that  such  was  the  relation  of  the  parties,  we 
are  still  of  c^inion  that  no  material  error  is  shown  by  the  record, 
since  all  the  evidence  to  which  objection  was  made  came  fairly  within 
the  res  gestae  and  the  rule  permitting  proof  of  the  actual  transaction 
involved  in  the  issue.  The  limitations  upon  that  rule  are  easily  stated, 
but  often  difficult  in  their  application.  Those  limitations  were  well 
described  in  Tilson  v.  Terwilliger  (56  N.  Y.  277).  The  declarations 
must  be  made  at  the  time  of  the  act  done  which  they  are  supposed 
to  characterize;  they  must  be  calculated  to  unfold  the  nature  and 
quality  of  the  facts  which  they  are  intended  to  explain,  and  they 
must  harmonize  with  those  facts  as  to  form  one  transaction.  That 
transaction,  the  thing  done,  the  fact  put  in  issue,  was  the  fraud,  which 
evidently  was  not  a  simple,  but  a  compound  and  continuous  fact,  pro- 
ceeding to  its  result  by  consecutive  steps  and  separate  acts,  having 


380  Cases  on  Evidence 

necessarily  an  origin,  a  progress  and  an  ultimate  result,  involving  not 
only  the  intent  of  the  assured,  but  also  his  sanity,  without  which 
X  the  responsible  intent  could  not  exist.  This  fraud,  therefore,  could  be 
studied  and  proved  all  along  the  line;  and  in  all  its  stages,  from 
origin  to  culmination,  formed  part  of  the  issue  to  be  investigated. 
If  in  such  a  case  declarations  are  excluded  which  are  merely  nar- 
rative of  a  past  transaction,  the  residue  so  far  as  pertinent  to  the 
issue,  will  generally,  and  with  few  exceptions,  be  admissible  in  evi- 
dence. 

It  is  thus  not  difficult  to  decide  that  the  proof  of  applications  by 
Tyler  to  thirty-six  different  insurance  companies,  by  which  he  secured 
$282,000  of  insurance  upon  his  life,  and  his  letters  and  telegrams  to 
relatives  and  friends  written  and  sent  as  steps  or  agencies  in  the 
consummation  of  his  purpose,  and  indicating  a  sane  and  deliberate 
intent  to  consummate  the  fraud,  which  for  more  than  a  year  had 
been  in  preparation,  by  a  final  act  of  suicide,  were  all  admissible. 
But  some  of  the  evidence  was  more  remote  and  approached  so  near 
the  outside  boundaries  of  the  res  gestae  as  to  require  a  specific  and 
particular  examination. 

The  defendant  was  allowed  to  prove  by  Henry  A.  Bowenthat,  in 
the  summer  of  1885,  he  went,  at  the  request  of  Tyler,  to  the  latter 's 
friends  to  raise  money  for  him ;  that  he  failed  to  accomplish  the  pur- 
pose; that,  on  his  return,  he  had  a  conversation  with  Tyler  in  which 
he  informed  him  of  that  failure,  in  reply  to  which  Tyler  said  he 
was  a  man  who  must  have  money,  and  if  he  couldn't  raise  it  he  would 
commit  suicide.  This  was  a  few  months  before  the  process  of  in- 
suring began,  and  tended  to  show  two  things,  both  of  which  were 
pertinent  to  the  issue.  It  indicated  an  existing  motive  for  the  fraud 
in  the  want  of  money  and  the  failure  to  obtain  it,  and  the  origin  and 
occasion  of  the  alleged  suicidal  intent.  The  declaration  accompanied 
and  characterized  an  act  which  was  itself  admissible  in  evidence,  for 
that  act  indicated  the  then  desperate  character  of  Tyler's  financial 
situation,  and  the  declaration  explained  the  operation  and  effect  of 
the  fact  upon  his  mind,  its  force  and  strength  as  a  motive  to  the 
fraud,  and  the  presence  of  a  thought  or  contemplation  of  suicide  in 
a  contingency  which  did  in  fact  occur.  The  evidence  serves  to  indi- 
cate the  origin  and  motive  of  the  alleged  suicidal  intent,  which  grew 
to  be  the  effective  agency  of  the  fraud. 

In  the  same  connection  the  witness  was  permitted  to  detail  inquiries 
which  Tyler  made  in  Lutkin  as  to  the  easiest  mode  of  producing  death. 
These  inquiries   were   rather  acts  than   declarations,   and   show  the 


Dfici^ARATioNS  Part  of  Res  Gestae  381 

assured  in  the  process  of  acquiring  information  to  effect  easily  and 
swiftly  the  destruction  of  his  own  life. 

Similar  testimony  of  an  intent  to  commit  suicide  rather  than  endure 
poverty  or  hard  labor,  was  given  by  the  witness  Trested,  but  in  con- 
nection with  inquiries  about  insurance  and  with  an  endeavor  to  get 
into  a  benefit  society  connected  with  the  hat  trade.  The  witness  added 
Tyler's  declaration  that  he  intended  to  put  a  large  insurance  upon  his 
life  and  make  the  boys  happy. 

These  acts  and  declarations  all  occurred  before  the  plaintiff  took 
his  policy  as  collateral,  and  when  they  affected  no  one  but  Tyler 
himself.  They  intended  to  show  the  origin  and  progress  of  the  fraud- 
ulent intent,  the  manner  of  its  growth  and  the  motive  from  which  it 
sprung.  They  indicate  a  sane  and  deliberate  purpose  moving  steadily 
to  its  result,  and  constitute  a  part  of  the  history  of  the  fraud.  They 
were  contemporaneous  with  the  fraud  in  its  formative  stages ;  they 
accompanied  Tyler's  efforts  to  raise  money,  which  failed,  and  to 
procure  an  insurance  upon  his  life  which  he  knew  he  could  not  con- 
tinuously maintain.  They  show  the  motive  of  the  fraud  and  mark  its 
progress,  and  harmonize  completely  with  all  which  afterward  oc- 
curred as  to  constitute,  with  that,  elements  of  the  single  transaction, 
the  fraudulent  conduct  which  raised  the  issue  presented  by  the  de- 
fense. And  so  I  think  the  proof  came  fairly  within  the  rule  relating 
to  the  res  gestae,  and  did  not  transcend  its  limits. 

Some  of  this  evidence  was  restricted  upon  the  ground  that  death 
by  suicide  was  no  defense  under  the  terms  of  the  policy.  That  is 
true;  but  the  defense  was  fraud,  and  suicide  the  ultimate  agency  by 
which  the  fraud  was  accomplished.  It  was  necessary,  therefore,  to 
prove  it,  and  in  such  manner  as  to  indicate  that  it  was  not  an  insane 
or  sudden  impulse,  but  the  culmination  and  effective  working  out 
of  a  deliberately  conceived  purpose  of  fraud. 

We  think  no  error  was  committed  in  the  admission  of  the  evidence 
upon  which  the  jury  acted,  and  that,  after  due  consideration  of  the 
exceptions  taken  to  the  charge,  the  case  was  fairly  submitted  for 
determination  upon  its   facts. 

The  judgment  should  be  affirmed  with  consts. 

All  concur,  except  Andrews,  J.,  not  voting. 

Judgment  affirmed. 


382  Cases  on  Evidence 

COMMONWEALTH  v.  VAN  HORN. 
j88  Pa.  St.  143.    (1898) 

Argued  May  30,  1898.  Appeal,  No.  162,  Jan.  T.,  1898,  by  defendant, 
from  judgment  of  O.  &  T.  Lackawanna  Co.,  Oct.  T,,  1897,  No.  20, 
on  verdict  of  guilty  of  murder  in  the  first  degree.  Before  Sterrett, 
C.  J.,  Green,  McCollum,  Mitchell,  Dean  and  Fell,  JJ.    Affirmed. 

Mr.  Jones,  Do  you  remember  the  day  that  Mrs.  Westcott's  throat 
was  cut?  A.  Yes,  sir.  Q.  Did  you  see  her  that  day,  did  you 
see  her  with  her  throat  cut?  A.  Yes,  sir.  Q.  Go  on  and  tell  the 
court  and  jury  when  you  first  saw  her  and  all  about  it.  A.  It  was 
about  8  o'clock  in  the  evening  when  I  was  playing  a  game  of  hoop- 
a-hoy  and  ran  by  the  Nay-Aug  barn  and  I  fell  and  hurt  my  knee, 
and  I  started  walking  by  when  I  seen  Mrs.  Westcott  come  out  of 
the  cellar  and  Mr.  Van  Horn  after  her,  and  I  seen  Mr.  Van  Horn 
jump  the  fence,  and  I  hear  like  the  sound  of  wire ;  and  she  ran  around 
and  went  in  the  house  and  went  upstairs  and  come  down  the  front, 
right  away;  she  wasn't  half  a  minute;  and  as  soon  as  she  seen  me, 
I  ran  right  in  the  gate  and  she  says,  'George  Van  Horn  did  it,'  and 
she  said,  'Frankie,  get  a  doctor.* " 

Counsel  for  the  defendant  moved  to  have  the  answer  stricken  out 
as  it  was  not  included  in  the  oflFer,  alleging  that  he  did  not  have  an 
opportunity  to  object  to  it,  and  he  asked  to  have  it  stricken  out. 

By  the  Court:  That  is  you  object  to  the  declaration  made  by 
Mrs.  Westcott. 

Mr.  Thayer:    Yes,  sir. 

By  the  Court:  I  will  consider  it  now  as  though  it  had  been  made 
under  the  oflFer.    I  will  hear  you  upon  the  motion. 

Mr.  Wedemant :  I  understand  that  it  is  not  part  of  the  res  gestae, 
an^  I  object  to  it.  We  think  it  is  not  evidence  and  we  ask  to  have 
the  answer  stricken  out. 

By  the  Court:  Beddingfield's  case  was  decided  by  Chief  Justice 
Cockburn  trying  a  case  at  nisi  prius,  and  was  the  subject  of  consid- 
erable comment  at  the  time.  The  whole  narrative  of  the  case  and  of 
its  surroundings,  and  the  cross-examination  which  it  evoked,  are  to 
be  found  in  the  14th  and  15th  volumes  of  the  American  Law  Review. 
A  review  of  the  case  is  there  made  by  Prof.  Thayer,  of  the  law  school 
of  the  Harvard  University,  himself  a  very  eminent  authority  upon 
the  subject  of  evidence.  The  result  of  that  review  is  to  call  in 
question  the  soundness  of  that  decision.    The  eminent  judge  by  whom 


DECLARATIONS  Part  of  Res  Gestae  383 

it  is  made,  even  the  manner  of  the  making  of  his  rulings,  is  criticized 
because,  without  any  objection  on  the  part  of  the  defendant's  counsel, 
evidently  having  some  idea  of  what  there  was  in  the  case,  he  stopped 
a  witness  of  his  own  motion  and  excluded  the  evidence  without  fur- 
ther discussion.  It  does  not  seem  to  me  that  this  is  the  law.  The 
common  mind  certainly  accepts  a  declaration  of  that  kind  under  the 
circumstances  as  carrying  the  highest  character  of  evidence;  it  is 
not  only  made  at  the  time  by  the  person  having  the  best  information, 
but  is  strongly  persuasive  of  the  truth,  and  it  requires  the  exercise 
of  a  good  deal  of  legal  learning  and  acumen  to  keep  it  out?  It  does 
not  seem  to  me  that  the  argument  upon  which  it  is  excluded  cor- 
rectly states  the  law,  and  I  am  justified  in  that  conclusion  by  the 
decision  of  our  Supreme  Court  to  which  the  district  attorney  has 
referred  me  in  Com.  v.  Werntz,  161  Pa.  591.  It  is  true  that  in  that 
case  the  question  arose  a  little  differently;  there  the  defendant  sought 
to  put  in  those  declarations  to  show  that  he  was  not  the  one  who  did 
the  deed,  but  that  some  one  else  was ;  but  at  the  same  time  the  reason- 
ing upon  which  the  Supreme  Court  says  that  this  was  evidence  fully 
established  it  as  evidence,  not  only  to  exculpate  one  but  to  inculpate 
another,  and  that  is  what  is  sought  to  be  introduced  here.  Following 
that  authority  and  what  I  believe  to  be  the  weight  of  authority  in 
this  country,  notwithstanding  Beddingfield's  case  and  the  cases  cited 
by  counsel  for  the  defendant  from  the  Supreme  Court  of  California 
and  Indiana,  I  will  overrule  the  motion. 

Opinion  by  Mr.  Justice  Green,  October  17,  1898 : 
Twenty-fourth  and  twenty-fifth  assignments:  these  relate  to  the 
declarations  of  the  deceased  when  she  was  seen  just  after  coming 
from  the  cellar,  with  her  throat  cut  and  profusely  bleeding.  The 
declarations  in  question  were  made  by  the  deceased  immediately  after 
she  came  from  the  cellar  and  while  the  blood  was  gushing  in  great 
quantities  from  the  cut  which  had  just  been  made  across  her  throat. 
She  was  in  the  act  of  fleeing  from  pursuit  at  the  instant  when  the 
declarations  were  made.  They  were  a  part  of  the  same  transaction. 
In  point  of  time  the  declarations  immediately  followed  the  cutting, 
and  in  point  of  distance  the  declarations  and  the  cutting  were  on  the 
same  premises.  There  could  scarcely  be  any  greater  propinquity  of 
both  time  and  place.  There  cannot  be  a  moment's  doubt  that  the 
declarations  were  the  spontaneous  utterances  springing  out  of  the 
transaction  itself.  We  are  clearly  of  opinion  that  they  were  com- 
petent evidence  as  part  of  the  res  gestae. 

All  the  foregoing  comments  are  directly  applicable  to  the  present 


384  Cases  on  Evidence 

case.  The  declaration  made  to  Frank  Gehrens,  was  as  follows:  he 
testified:  "It  was  about  8  o'clock  in  the  evening  when  I  was  playing 
a  game  of  hoop-a-hoy,  and  ran  by  the  Nay-Aug  barn ;  and  I  fell 
and  hurt  my  knee ;  and  I  started  walking  by,  when  I  seen  Mrs.  West- 
cott  come  out  of  the  cellar,  and  Mr.  Van  Horn  after  her;  and  I  seen 
^Ir.  Van  Horn  jump  the  fence.  I  seen  him  jump  the  fence  and  I 
heard  like  the  sound  of  wire,  and  she  ran  around  and  went  in  the 
house  and  went  upstairs  and  came  down  the  front  right  away;  she 
wasn't  half  a  minute  and  she  came  out;  as  soon  as  she  see  me,  I  ran 
right  in  the  gate  and  she  says:  'George  Van  Horn  did  it;'  and  she 
said,  'Frankie,  get  the  doctor,'  and  I  ran  after  Dr.  Burnett."  The 
declaration  made  to  Mrs.  Fetterhoff  was,  "that  her  throat  was  cut 
— that  she  had  been  murdered,  and  that  George  Van  Horn  had  done 
it."  This  was  made  at  the  moment  she  was  in  the  house,  as  testified 
by  Gehrens.  When  it  is  considered  that  these  declarations  were  made 
as  quickly  as  they  could  be  made  after  the  occurrence,  to  the  persons 
to  whom  they  were  made,  in  an  immediately  succeeding  order  of 
events,  by  the  person  best  qualified  to  know,  and  most  deeply  inter- 
ested, and  in  such  circumstances  as  to  preclude  all  idea  of  premedita- 
tion or  design,  it  is  manifest  that  they  come  exactly  within  the  ruling 
in  the  Werntz  case  and  the  reasoning  there  expressed. 

Judgment  affirmed. 


KEYS  V.  CITY  OF  CEDAR  FALLS. 
10/  la.  509.     (1899) 

Action  at  law  to  recover  damages  for  injuries  sustained  by  plaintiff 
resulting  from  a  fall  into  an  excavation  in  one  of  the  streets  in  defend- 
ant city.  Trial  to  a  jury  and  verdict  for  plaintiff  for  four  thousand  five 
hundred  dollars,  which  was  reduced  by  the  court  to  the  sum  of  three 
thousand  dollars,  and  defendant  appeals.    Affirmed. 

Deemer,  J.  When  the  plaintiff  came  back  to  the  mill,  which  was 
immediately  after  his  fall,  he  dropped  into  a  chair,  and  was  sitting  there, 
when  one  Lemmers,  an  employe  at  the  mill,  discovered  him.  His  hat 
and  coat  were  covered  with  dirt,  and  he  had  a  frightened  appearance. 
Lemmers  asked  what  was  the  matter,  and  plaintiff  thereupon  responded 
that  he  had  fallen  into  an  excavation  and  was  hurt.  Plaintiff,  on  his 
examination,  was  also  permitted  to  testify  that,  within  three  minutes 


Deci.arationS'Part  of  Res  Gestae  385 

from  the  time  the  accident  occurred,  he  told  Lemmers  and  a  man  by 
the  name  of  Hanson  about  what  had  occurred.  All  this  evidence  was 
objected  to,  but  the  objections  were  overruled.  It  may  be  that  plaintiff's 
evidence  as  to  his  having  told  these  persons  about  his  having  been  hurt 
was  irrelevant  and  immaterial,  but,  if  so,  it  was  without  prejudice,  for 
he  did  no  more  than  say  that  he  told  them.  Evidence  as  to  what  he  said 
to  them  was  not  given  by  the  plaintiff.  The  testimony  of  Lemmers,  if 
admissible  at  all,  was  proper,  as  part  of  the  res  gestae.  Appellant 
claims  that  what  plaintiff'  said  was  a  narrative  or  statement  made  after 
the  main  transaction  was  ended,  and  was  therefore  inadmissible.  It  is 
often  difficult  to  determine  when  a  statement  or  declaration  is  a  part  of 
the  res  gestae.  The  rule  we  have  heretofore  announced  is  that,  if  they 
are  near  enough  in  point  of  time  with  the  principal  transaction  to 
clearly  appear  to  be  spontaneous,  unpremeditated,  and  free  from  sin- 
ister motives,  and  afford  a  reliable  explanation  of  the  principal  transac- 
tion, they  are  admissible  in  evidence.  State  v.  Jones,  64  Iowa,  34Q; 
McMurrin  v.  Rigby,  80  Iowa  322 ;  State  v.  DriscoU,  72  Iowa  583  ;  Frink 
V.  Coe,  4  G.  Greene  555.  See,  also.  Insurance  Co.  v.  ]\Iosely,  8  Wall. 
397;  Keyser  v.  Railway  Co.,  66  Mich.  390  (33  N,  W.  Rep.  867).  We 
think  the  declaration  made  by  plaintiff  was  so  connected  in  point  of  time 
and  with  the  main  transaction,  and  came  so  spontaneously,  that  it  was 
admissible  as  part  of  the  res  gestae.  The  evidence  was  clearly  compe- 
tent, as  explanatory  of  plaintiff's  appearance  as  there  was  no  time  for 
him  to  have  invented  a  false  statement.  Plaintiff  was  also  permitted  to 
testify,  over  defendant's  objections,  that  he  was  compelled  to  sell  out 
his  business  because  his  physical  condition  was  such  that  he  was  not 
able  to  conduct  it.  The  mere  fact  that  he  sold  his  business  was  probably 
immaterial  to  any  inquiry  in  the  case.  But  the  fact  that  he  was  unable  to 
attend  to  his  business  by  reason  of  his  injuries  was  very  material.  The 
statement  as  to  why  he  sold  was  but  another  way  of  saying  that  he 
was  unable  to  carry  on  or  conduct  the  business  in  which  he  was  engaged 
before  he  received  his  injuries,  and  we  think  it  was  proper.  In  any 
event,  the  error  was  without  prejudice.  Wade  v.  Leroy,  20  How.  34; 
Kinney  v.  Crocker,  18  Wis.  80;  Smay  v.  Etnire,  99  Iowa  149. 
No  prejudicial  error  appears,  and  the  judgment  is 

Affirmed. 


386  Cases  on  Evidence 

SIEBERT  V.  vSTATE. 
14s  III.  571.    (1892) 

Defendants  were  convicted  of  murder. 

Craig,  J.  The  next  point  relied  upon  by  the  defendants  to  reverse 
the  judg-ment  is,  that  the  court  erred  in  refusing  to  allow  the  defendants 
to  prove  that  the  deceased,  at  different  times  within  a  year  of  his  death 
and  prior  to  his  last  sickness  which  resulted  in  his  death,  made  threats 
that  he  intended  to  take  his  own  life, — that  he  intended  to  commit  sui- 
cide. It  will  be  observed  that  the  declarations  offered  as  evidence  were 
not  a  part  of  the  res  gestae,  or  accompanied  by  any  act  of  the  deceased 
which  they  might  characterize  or  explain,  but  were  mere  naked  declara- 
tions offered  as  original  evidence.  It  is  conceded  in  the  argument,  and 
fully  established  by  the  evidence  that  the  deceased  came  to  his  death 
from  arsenical  poisoning,  and  while  it  is  true  that  it  was  a  question  for 
the  jury  to  determine,  from  the  evidence,  whether  the  deceased  came 
to  his  death  from  poison  administered  by  the  defendants,  or  adminis- 
tered by  himself  or  some  other  person,  yet  that  question  was  one  which 
must,  like  all  other  issues  involved  in  the  trial  of  a  legal  proceeding,  be 
settled  by  legal  and  competent  evidence  introduced  by  the  respective 
parties. 

Judgment  affirmed. 


C.  &  E.  I.  R.  R.  CO.  V.  CHANCELLOR. 
165  III.  438.     (1897) 

This  action  was  brought  by  appellee,  as  administrator  of  the  estate  of 
Josepliine  H.  Johnson,  deceased,  to  recover  damages  from  appellant  for 
causing  the  death  of  appellee's  intestate.  The  declaration  contains  two 
counts. 

To  the  declaration  the  general  issue  was  filed,  and  upon  a  trial  by  jury 
a  verdict  was  returned  for  appellee  in  the  sum  of  $5000.  The  trial 
court  entered  judgment  on  this  verdict, .  which  judgment,  on  appeal  to 
the  Appellate  Court  for  the  First  District,  was  affirmed.  Whereupon 
this  appeal  was  prosecuted  to  this  court. 

Phillips,  J.  The  principal  error  assigned  by  appellant,  and  relied 
on  as  a  reason  for  reversal  of  this  judgment,  is  on  the  admission  of 


DECI.ARATIONS  Part  of  Res  Gestae  387 

improper  evidence  by  the  trial  court.  Over  the  objection  of  appellant 
a  witness,  Mrs.  Laura  Stangnan,  was  permitted  to  testify  for  appellee 
that  she  was  at  the  house  of  Mrs.  Johnson  between  seven  and  eight 
o'clock  on  the  morning  in  question,  and  that  Mrs.  Johnson  was  getting 
ready  to  go  to  the  city  to  get  a  dress,  and  that  she  said  she  was  going 
on  the  nine  o'clock  train  because  that  would  take  her  near  to  Siegel  & 
Cooper's.  At  the  time  this  was  said  she  was  getting  her  children  ready 
to  go  to  school.  The  sole  object  of  this  evidence  was  to  show  that  the 
decedent  intended  to  become  a  passenger  on  appellant's  train.  This 
became  a  material  fact  in  the  case,  for  the  reason  that  if  Mrs.  Johnson 
sustained  the  relation  of  a  passenger  at  the  time  of  the  accident,  then 
appellant  was  bound  to  exercise  the  highest  reasonable  and  practicable 
degree  of  care  for  her  safety.  (Chicago  &  Alton  R.  R.  Co.  v.  Pillsbury, 
123  111.  9;  Chicago  &  Alton  R.  Co.  v.  Arnol,  144  id.  261.)  If  she  did 
not  sustain  the  relation  of  a  passenger  or  intended  passenger,  then  only 
ordinary  care  was  required  of  appellant.  It  thus  became  an  important 
question  of  fact  to  be  determined  whether  the  decedent  sustained  the 
relation  of  an  intended  passenger  on  appellant's  train. 

The  evidence  of  Mrs.  Stangnan,  above  cited,  as  to  the  acts  and  decla- 
rations of  decedent,  an  hour  before  the  accident,  was  practically  all  that 
was  relied  on  by  appellee  to  show  her  relation  as  a  passenger.  To  con- 
trovert this,  it  was  shown  by  the  only  persons  in  charge  of  appellant's 
ticket  office  that  she  purchased  no  ticket  and  that  morning,  and  after 
her  death  those  who  took  immediate  charge  of  her  effects  found  no 
ticket  and  only  a  few  pennies  in  money  in  her  purse ;  also,  that  during 
the  thirty  minutes  she  had  been  at  appellant's  station  one  regular  passen- 
ger train  had  departed  for  Chicago  and  one  in  the  other  direction.  The 
question  for  consideration  is,  whether  this  evidence  was  part  of  the 
res  gestae.  If  so,  it  was  properly  admitted  by  the  trial  court,  and  if  not 
it  was  error. 

Courts  have  not  'always  found  it  without  difficulty  of  determination 
as  to  whether  or  not  particular  acts  or  declarations  were  so  nearly  con- 
temporaneous or  co-incident  with  the  act  itself  as  to  become  part  of  the 
res  gestae.  The  rule  is  thus  laid  down  by  Greenleaf :  "Declarations,  to 
become  a  part  of  the  res  gestae,  must  have  been  made  at  the  time  of  the 
act  done  which  they  are  supposed  to  characterize,  and  have  been  well 
calculated  to  unfold  the  nature  and  quality  of  the  fact  which  they  were 
intended  to  explain,  and  so  to  harmonize  them  as  obviously  to  constitute 
one  transaction."    Greenl.  on  Ev.  Sec.  108,  note  i. 

Where  the  evidence  shows  the  party  is  about  to  start  on  a  journey, 
from  common  experience  we  know  it  is  usual  and  natural  that  something 


388  Cases  on  Evidence 

is  said  by  the  party  relating  to  the  departure,  and  of  a  character  in- 
dicative or  explanatory.  For  such  declarations  to  be  admissible  in  evi- 
dence as  part  of  the  res  gestae  they  must  be  made  in  connection  with  an 
act  proven,  as  in  the  case  above  -cited.  The  rule  is,  that  the  res  gestae 
generally  remains  with  the  locus  in  quo,  and  it  does  not  follow  the 
parties  after  the  principal  act  is  completed.  The  authorities  to  which 
we  are  cited  in  argument  are  principally  those  in  which  the  declarations 
sought  to  be  considered  were  made  after  the  act  or  injury  with  which 
they  are  attempted  to  be  connected.  The  rule  is,  in  determining  whether 
or  not  declarations  made  before  or  after  the  principal  act  are  to  be 
considered  as  part  of  the  res  gestae,  lapse  of  time  is  taken  into  consid- 
eration, and  such  declarations  made  after  the  principal  act  will  not  be 
considered  as  part  of  the  res  gestae  if  there  is  any  change  from  the  place 
of  the  occurrence  of  the  principal  act  or  in  the  condition  of  the  parties. 
The  evident  reason  of  the  rule  is,  that  in  such  event  an  opportunity  for 
fabrication  might  be  given  or  testimony  might  be  manufactured  by  in- 
terested parties.  Whether  or  not  such  act  or  declarations  will  be  so 
considered  must  depend  upon  the  circumstances  of  each  case.  The  real 
test  is,  whether  the  principal  act  and  the  declarations  sought  to  be  con- 
sidered as  part  of  the  res  gestae  are  separated  from  each  other  by  sucli 
a  lapse  of  time  as  to  render  it  probable  that  the  parties  are  speaking 
from  designing  purposes  rather  than  instinctive  impulse.  It  can  be 
stated  as  the  general  rule,  that  anything  said  or  done  before  the  prin- 
cipal act  occurred  or  was  within  the  contemplation  of  the  parties  cannot 
be  regarded  as  part  of  the  res  gestae,  although  only  separate  by  the 
least  possible  span  of  time,  unless  it  tends  to  explain  and  unfold  the 
principal  act  by  the  undesigned  act  or  declaration  of  the  party,  for  the 
reason  that  such  declaration  or  act  could  not  be  said  to  throw  any  light 
upon  the  motives  of  the  parties.  A  person  desiring  to  commit  suicide 
might  an  hour  before  the  act,  declare  that  he  intended  to  become  a 
passenger  upon  a  train,  when,  as  a  matter  of  fact,  no  such  intention 
existed  in  his  mind,  but  the  only  intention  there  existing  might  be  to 
go  to  a  passenger  station  where  trains  were  passing,  for  the  purpose  of 
taking  his  own  life.  Such  declaration,  therefore,  made  an  hour  or  any 
other  space  of  time  previous  to  the  act  of  departure,  itself  would  afford 
no  light  upon  his  intention,  and  could  not  be  considered  as  evidence 
unless  immediately  connected  with  the  act  of  departure.  In  the  case  at 
bar,  at  the  time  the  declarations  which  were  sought  to  be  admitted  as 
evidence  were  made,  the  decedent  was  getting  her  children  ready  for 
school  and  performing  her  ordinary  household  duties,  and  while  so 
doing  she  declared  an  intention  of  going  to  the  city  of  Chicago     This 


Deci^rations  Part  of  Rts  Gestae  389 

declaration  was  not  connected  with  the  act  of  departure  itself,  and  was 
not  admissible.  To  admit  such  declaration  as  constituting  a  part  of  the 
res  gestae  would,  on  the  same  principle,  hold  admissible  a  like  declara- 
tion made  a  day  or  a  week  before.  Such  declaration  therefore,  made  to 
the  witness  Stangnan,  was  not  competent  as  part  of  the  res  gestae,  and 
*  was  error  to  admit  it. 

Reversed  and  remanded. 


CONNECTICUT  MUTUAL  LIFE  INS.  CO.  v.  HILLMON. 
145  U.  S.    (1891) 

On  July  13,  1880,  Sallie  E.  Hillmon,  a  citizen  of  Kansas,  brought 
an  action  against  the  Mutual  Life  Insurance  Company,  a  corporation 
of  New  York  on  a  policy  of  insurance  dated  December  10,  1878,  on 
the  life  of  her  husband  John  W.  Hillmon,  in  the  sum  of  $10,000, 
payable  to  her  within  sixty  days  after  notice  and  proof  of  his  death. 
On  the  same  day  the  plaintiff  brought  two  other  actions,  the  one 
against  the  New  York  Life  Insurance  Company,  a  corporation  of 
New  York,  on  two  similar  policies  of  life  insurance,  dated  respectively 
November  30,  1878,  and  December  10,  1878,  for  the  sum  of  $5,000 
each;  and  the  other  against  the  Connecticut  Mutual  Life  Insurance 
Company,  a  corporation  of  Connecticut,  on  a  similar  policy,  dated 
March  4,  1879,  for  the  sum  of  $5,000, 

In  each  case,  the  declaration  alleged  that  Hillmon  died  on  March 
17,  1879,  during  the  continuance  of  the  policy,  but  that  the  defendant, 
though  duly  notified  of  the  fact,  had  refused  to  pay  the  amount 
of  the  policy,  or  any  part  thereof;  and  the  answer  denied  the  death 
of  Hillmon,  and  alleged  that  he,  before  November  30,  1878,  con- 
spired to  defraud  the  defendant,  procured  the  issue  of  all  the  policies, 
and  afterwards,  in  March  and  April,  1879,  falsely  pretended  and 
represented  that  Hillmon  was  dead,  and  that  a  dead  body  which  they 
had  procured  was  his,  whereas  in  reality  he  was  alive  and  in  hiding. 
The  defendants  introduced  testimony  that  Frederick  Adolph  Walters 
left  his  home  at  Fort  Madison  in  the  State  of  Iowa  in  March,  1878, 
and  was  afterwards  in  Kansas  in  1878,  and  in  January  and  February, 
1879;  that  during  that  time  his  family  frequently  received  letters 
from  him,  the  last  of  which  was  written  from  Wichita;  and  that  he 


390  Cases  on  Evidence 

had  not  been  heard  from  since  March,  1879.     The  defendants  also 
offered  the  following  evidence: 

Elizabeth  Rieffenach  testified  that  she  was  a  sister  of  Frederick 
Adolph  Walters,  and  lived  at  Fort  Madison ;  and  thereupon,  as  shown 
by  the  bill  of  exceptions,  the  following  proceedings  took  place: 

"Witness  further  testified  that  she  had  received  a  letter  written 
from  Wichita,  Kansas,  about  the  4th  or  5th  day  of  March,  1879,  by  her 
brother  Frederick  Adolph;  that  the  letter  was  dated  at  Wichita,  and 
was  in  the  handwriting  of  her  brother ;  that  she  had  searched  for 
the  letter,  but  could  not  find  the  same,  it  being  lost;  that  she  remem- 
bered and  could  state  the  contents  of  the  letter. 

"Thereupon  the  defendants'  counsel  asked  the  question:  'State 
the  contents  of  the  letter.'  To  which  the  plaintiff  objected,  on  the 
ground  that  the  same  is  incompetent,  irrelevant,  and  hearsay.  The 
objection  was  sustained  and  the  defendants  duly  excepted.  The 
following  is  the  letter  as  stated  by  the  witness: 

"Wichita,   Kansas, 

March  4th  or  5th — I  don't  know — 1879. 

Dear  sister  and  all :  I  now  in  my  usual  style  drop  you  a  few  lines 
to  let  you  know  that  I  expect  to  leave  Wichita  on  or  about  March 
the  5th,  with  a  certain  Mr,  Hillmon,  a  sheep-trader,  for  Colorado 
or  parts  unknown  to  me.  I  expect  to  see  the  country  now.  News 
are  of  no  interest  to  you,  as  you  are  not  acquainted  here.  I  will 
close  with  compliments  to  all  inquiring  friends. 
Love  to  all. 

"I  am  truly  your  brother, 

Fred.  Adolph  Walters." 

Alvina  D.  Ka^ten  testified  that  she  was  twenty-one  years  of  age 
and  resided  in  Fort  Madison ;  that  she  was  engaged  to  be  married 
to  Frederick  Adolph  Walters;  that  she  last  saw  him  on  March  24, 
1878,  at  Fort  Madison;  that  he  left  there  at  that  time,  and  had  not 
returned ;  that  she  corresponded  regularly  with  him,  and  received  a 
letter  about  every  two  weeks  until  March  3,  1879,  which  was  the 
last  time  she  received  a  letter  from  him ;  that  this  letter  was  dated 
at  Wichita,  March  i,  1879,  and  was  addressed  to  her  at  Fort  Madi- 
son, and  the  envelope  was  postmarked  "Wichita,  Kansas,  March  2, 
1879;"  and  that  she  had  never  heard  from  or  seen  him  since  that 
time. 

Defendants  put  in  evidence  the  envelope  with  the  postmark  and 
address;  and  thereupon  offered  to  read  the  letter  in  evidence.     The 


Declarations  Part  oi^  Res  Gestae  391 

plaintiflF  objected  to  the  reading  of  the  letter,  the  court  sustained  the 
objection,  and  the  defendants  excepted. 

This  letter  was  dated  "Wichita,  March  i,  1879,  was  signed  by 
Walters,  and  began  as  follows : 

"Dearest  Alvina:  Your  kind  and  ever  welcome  letter  was  received 
yesterday  afternoon  about  an  hour  before  I  left  Emporia.  I  will  stay 
here  until  the  fore  part  of  next  week,  and  then  will  leave  here  to 
see  part  of  the  country  that  I  never  expected  to  see  when  I  left 
home,  as  I  am  going  with  a  man  by  the  name  of  Hillmon,  who 
intends  to  start  a  sheep  ranch,  and  as  he  promised  me  more  wages 
than  I  could  make  at  anything  else  I  concluded  to  take  it,  for  a  while 
at  least  until  I  strike  something  better.  There  is  so  many  folks  in 
this  country  that  have  got  the  Leadville  fever,  and  if  I  could  not 
of  got  the  situation  that  I  have  now  I  would  have  went  there  myself; 
but  as  it  is  at  present  I  get  to  see  the  best  portion  of  Kansas,  Indian 
Territory,  Colorado,  and  Mexico.  The  route  that  we  intend  to  take 
would  cost  a  man  to  travel  from  $150  to  $200,  but  it  will  not  cost 
me  a  cent,  besides,  I  get  good  wages.  I  will  drop  you  a  letter  oc- 
casionally until  I  get  settled  down ;  then  I  want  you  to  answer  it." 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

There  is,  however,  one  question  of  evidence  so  important,  so  fully 
argued  at  the  bar,  and  so  likely  to  arise  upon  another  trial,  that  it 
is  proper  to  express  an  opinion  upon  it. 

This  question  is  of  the  admissibility  of  the  letters  written  by 
Walters  on  the  first  days  of  March,  1879,  which  were  offered  in  evi- 
dence by  the  defendants,  and  excluded  by  the  court.  In  order  to 
determine  the  competency  of  these  letters,  it  is  important  to  consider 
the  state  of  the  case  when  they  were  offered  to  be  read. 

The  matter  chiefly  contested  at  the  trial  was  the  death  of  John  W. 
Hillmon,  the  insured ;  and  that  depended  upon  the  question  whether 
the  body  found  at  Crooked  Creek  on  the  night  of  March  18,  1879, 
was  .his  body,  or  the  body  of  one  Walters. 

Much  conflicting  evidence  had  been  introduced  as  to  the  identity 
of  the  body.  The  plaintiff  had  also  introduced  evidence  that  Hill- 
mon and  one  Brown  left  Wichita  in  Kansas  in  or  about  ^March  5, 
1879,  and  traveled  together  through  Southern  Kansas  in  search  of 
a  site  for  a  cattle  ranch,  and  that  on  the  night  of  March  18,  while 
they  were  in  camp  at  Crooked  Creek,  Hillmon  was  accidentally  killed, 
and  that  his  body  was  taken  thence  and  buried.  The  defendants  had 
introduced  evidence,  without  objection,  that  Walters  left  his  home 
and  his  betrothed  in  Iowa,  in  March,  1878,  and  was  afterwards  in 


392  Cases  on  Evidence 

Kansas  until  March,  1879;  t^^*  during  that  time  he  corresponded 
regularly  with  his  family  and  his  betrothed;  that  the  last  letters 
received  from  him  were  one  received  by  his  betrothed  on  March  3, 
and  postmarked  at  Wichita  March  2,  and  one  received  by  his  sister 
about  March  4  or  5,  and  dated  at  Wichita  a  day  or  two  before;  and 
that  he  had  not  been  heard  from  since. 

The  evidence  that  Walters  was  at  Wichita  on  or  before  March  5, 
and  had  not  been  heard  from  since,  together  with  the  evidence  to 
identify  as  his  the  body  found  at  Crooked  Creek  on  March  18,  tended 
to  show  that  he  went  from  Wichita  to  Crooked  Creek  between  those 
dates.  Evidence  that  just  before  March  5  he  had  the  intention  of 
leaving  Wichita  with  Hillmon  would  tend  to  corroborate  the  evidence 
already  admitted,  and  to  show  that  he  went  from  Wichita  to  Crooked 
Creek  with  Hillmon,  Letters  from  him  to  his  family  and  betrothed 
were  the  natural,  if  not  the  only  attainable  evidence  of  his  intention. 

The  position,  taken  at  the  bar,  that  the  letters  were  competent 
evidence  within  the  rule  stated  in  NichoUs  v.  Webb,  8  Wheat.  326, 
337,  as  memoranda  made  in  the  ordinary  course  of  business,  cannot 
be  maintained,  for  they  were  clearly  not  such. 

But  upon  another  ground  suggested  they  should  have  been  ad- 
mitted. A  man's  sate  of  mind  or  feeling  can  only  be  manifested  to 
others  by  countenance,  attitude  or  gesture,  or  by  sounds  or  words, 
spoken  or  written.  The  nature  of  the  fact  to  be  proved  is  the  same, 
and  evidence  of  its  proper  tokens  is  equally  competent  to  prove  it, 
whether  expressed  by  aspect  or  conduct,  by  voice  or  pen.  When 
the  intention  to  be  proved  is  important  only  as  qualifying  an  act, 
its  connection  with  that  act  must  be  shown,  in  order  to  warrant  the 
admission  of  declarations  of  the  intention.  But  whenever  the  inten- 
tion is  of  itself  a  distinct  and  material  fact  in  a  chain  of  circumstances, 
it  may  be  proved  by  contemporaneous  oral  or  written  declarations 
of  the  party. 

The  existence  of  a  particular  intention  in  a  certain  person  at  a 
certain  time  being  a  material  fact  to  be  proved,  evidence  that  he 
expressed  that  intention  at  that  time  is  as  direct  evidence  of  the  fact, 
as  his  own  testimony  that  he  then  had  that  intention  would  be.  After 
his  death  there  can  hardly  be  any  other  way  of  proving  it;  and  while 
he  is  still  alive,  his  own  memory  of  his  state  of  mind  at  a  former 
time  is  no  more  likely  to  be  clear  and  true  than  a  bystander's  recol- 
lection of  what  he  then  said,  and  is  less  trustworthy  than  letters  writ- 
ten by  him  at  the  very  time  and  under  circumstances  precluding  a 
suspicion  of  misrepresentation. 


Declarations  Part  of  Res  Gestae  393 

The  letters  in  question  were  competent,  not  as  narratives  of  facts 
communicated  to  the  writer  by  others,  nor  yet  as  proof  that  he  actu- 
ally went  away  from  Wichita,  but  as  evidence  that,  shortly  before 
the  time  when  other  evidence  tended  to  show  that  he  went  away, 
he  had  the  intention  of  going,  and  of  going  with  Hillmon,  which  made 
it  more  probable  both  that  he  did  go  and  that  he  went  with  Hillmon, 
than  if  there  had  been  no  proof  of  such  intention.  In  view  of  the 
mass  of  conflicting  testimony  introduced  upon  the  question  whether 
it  was  the  body  of  Walters  that  was  found  in  Hillmon's  camp,  this 
evidence  might  properly  influence  the  jury  in  determining  that  ques- 
tion. 

Judgment  reversed,  and  case  remanded  to  the  Circuit  Court,  with  di- 
rections to  set  aside  the  verdict  and  to  order  a  new  trial. 


ROESNER  V.  DARRAH. 
65  Kan.  599.     (1902) 


DosTER,  C.  J.  This  was  an  action  for  damages  for  alienating  the 
affections  of  a  wife  and  for  her  seduction.  A  verdict  and  judgment 
were  rendered  for  defendant.  The  errors  claimed  are  the  admission 
and  the  rejection  of  evidence  and  the  giving  of  instructions.  As  to 
the  latter,  exceptions  were  not  preserved;  hence,  the  instructions  can- 
not be  reviewed. 

The  plaintiff  offered  his  own  testimony  as  to  the  defendant's  visits 
to  his  home,  as  to  his  wife's  apparent  change  of  attitude  and  feeling 
toward  him  after  she  became  acquainted  with  defendant,  and  as  to 
statements  made  to  hint  by  defendant  concerning  the  latter's  conduct 
with  the  wife.  All  this  was  rejected,  on  the  ground  that  the  plaintiff, 
as  the  husband,  was  incompetent  to  testify  to  matters  involving  his 
wife,  notwithstanding  the  latter  was  not  a  party  to  the  case.  The 
defendant  below,  the  defendant  in  error  here,  places  a  literal  con- 
struction on  section  323  of  the  civil  code  (Gen.  Stat.  1901,  sec,  4771), 
which  reads :  "The  following  persons  shall  be  incompetent  to  tes- . 
tify:  *  *  *  Third,  husband  and  wife,  for  or  against  each  other," 
etc.  He  says  that  this  statute  does  not  merely  disqualify  husbands 
and  wives  from  testifying  for  or  against  each  others*  claims  to  the 
subject-matter  in  litigation,  but  disqualifies  them  as  well  from  tes- 
tifying to  each  others'  personal  character,  conduct,  status,  or  other 


394  Cases  on  Evidence 

matter  in  interest,  whether  they  be  parties  to  the  litigation  or  not, 
and  whether  the  judgment  rendered  would  put  the  character,  conduct, 
status  or  matter  in  interest  in  the  category  of  res  judicata  or  not. 
In  other  words,  the  contention  is  that,  inasmuch  as  the  litigation  in- 
volved the  subject  of  the  wife's  fidelity  to  the  husband,  and  inasmuch 
as  she,  though  not  a  party  litigant,  was  incompetent  to  testify  for  or 
against  him,  he,  though  a  party,  was  equally  incompetent  to  testify 
against  her. 

This  contention  derives  support  from  some  of  the  decisions,  a  prin- 
cipal one  of  which  is  Cornelius  v.  Hamby,  150  Pa.  St.  359,  24  At. 
515.  It  was  there  held,  in  a  case  of  the  character  of  this  one,  that  a 
husband  was  incompetent  to  testify  to  the  adultery  of  his  wife,  al- 
though she  was  not  a  party  to  the  suit.  That  holding  was  made  under 
a  statute  like  ours.  It  may  be  that  the  decision  was  satisfactorily 
reasoned,  so  far  as  that  one  statute  was  concerned,  but  in  this  state 
we  have  in  addition  to  such  a  statute,  another  one  of  material  sig- 
nificance. Section  319  of  the  civil  code  (Gen.  Stat.  1901  sec.  4767) 
reads:  "No  person  shall  be  disqualified  as  a  witness  in  any  civil 
action  or  proceeding  by  reason  of  his  interest  in  the  event  of  the 
same,  as  a  party  or  otherwise,"  etc. 

This  statute  abrogates  the  common-law  rule  of  disqualification  to 
testify  because  of  interest,  and  except  as  limited  by  other  statutes 
in  pari  materia  makes  every  person  competent  to  give  evidence  in 
any  case.  The  limitation  contained  in  the  third  subdivision  of  sec- 
tion 323  of  the  civil  code,  supra,  does  not  apply  in  such  a  case  as  this. 
That  applies  only  to  prohibit  a  husband  or  wife,  when  not  a  party 
to  the  suit,  from  testifying  for  or  against  the  other  one  who  is  a 
party ;  not  to  prohibit  the  one  who  is  a  party  from  testifying  for  or 
against  the  other  one  who  is  not.  This  statement  of  the  general  rule 
is  not  intended,  of  course,  to  be  inclusive  of  those  exceptions  which 
the  statute  itself  makes,  and  which  exist  in  that  part  of  it  not  quoted 
above. 

The  language  of  the  opinion  in  Higbee  v.  McMillan,  18  Kan.  133, 
while  not  having  relation  to  a  state  of  facts  identical  with  those  in 
this  case,  nevertheless  declares  a  principle  applicable  to  the  general 
question,  and  definitely  and  positively  settles  the  rule  against  the 
contention  of  the  defendant  in  error.  See,  also,  Van  Fleet  v.  Stout, 
44  Kan.  523,  24  Pac.  960.  In  thus  holding  the  husband  competent 
to  testify  against  his  wife,  it  must  not  be  assumed  that  he  can  testify 
to  transactions  or  communications  had  with  her.     Such  character  of 


Declarations  Part  of  Res  Gestae  395 

testimony  is  forbidden  by  the  last  clause  of  the  third  subdivision  of 
said  section  323. 

The  plaintiff  offered  witnesses  to  prove  the  declarations  of  the  wife 
as  to  the  state  of  her  feelings  toward  both  her  husband  and  the  defend- 
ant. Some  of  these  offered  declarations  were  made  at  times  before 
the  alleged  seduction,  and  some  were  made  afterward.  They  were 
all  excluded.  A  question  may  exist  as  to  the  admissibility  of  such 
declarations  if  made  subsequently  to  the  guilty  intimacy,  but  we  think 
none  can  reasonably  exist  as  to  declarations  made  antecedently  to  it. 
The  general  rule  is  that,  when  the  inquiry  involves  the  existence  of  a 
bodily  or  mental  state,  the  declarations  of  the  party,  when  under  the 
influence  of  the  physical  or  mental  feeling  in  question  and  disclosing 
his  subjection  to  it,  are  not  hearsay,  but  original  evidence.  (Greenl. 
Ev.  sec.  102.)  This  rule  applies  in  actions  of  the  character  of  this 
one.'  (Gilchrist  v.  Bale,  8  Watts.  (Pa.),  355;  340  Am.  Dec.  469; 
Edgell  V.  Francis,  66  Alich.  303,  33  N.  W.  501.) 

Other  claims  of  error  are  made,  some  of  which  are  subsidiary  to, 
and  connected  with,  those  above  discussed  and  therefore  need  not  be 
specially  noticed.  Others,  however,  are  of  a  different  character,  but 
will  not  be  dwelt  upon.  It  was  not  error  to  permit  the  defendant 
to  testify  to  his  motive  in  inviting  plaintiff's  wife  to  visit  at  his  home. 
It  was,  however,  error  to  admit  evidence  of  declarations  made  by 
plaintiff's  wife,  that  she  had  to  work  hard  and  get  no  credit  for  it, 
and  that  she  was  homesick  and  intended  returning  to  the  place  from 
where  she  came.  Declarations  of  such  character  do  not  disclose  a 
mental  state  forming  a  pertinent  subject  of  inquiry,  and,  therefore, 
are  governed  by  a  different  rule.  It  was  also  error  to  admit  evidence 
of  plaintiff's  requiring  his  wife  to  assist  in  the  breeding  of  animals. 
and  to  permit  witnesses  to  detail  conversations  with  plaintiff  about 
lawsuits  in  Nebraska,  and  about  his  being  subjected  to  the  visits  or 
threats  of  "whitecaps"  in  Missouri.  These  topics  were  irrelevant  to 
the  meritorious  subject  of  inquiry,  and  would  naturally  tend  to  preju- 
dice the  plaintiff's  cause  before  the  jury. 
The  judgment  of  the  court  below  is  reversed  and  a  new  trial  ordered. 

All  the  Justices  concurring. 


396  Cases  on  Evidence 

IN  RE  DANIEL  BURNS'  WILL. 
121  N.  C.    (1897) 

FaircloTh,  J.  The  issue  was  devisavit  vel  non.  Daniel  Burns, 
aged  75  or  80  years,  died  in  1893,  leaving  eight  children  him  surviv- 
ing. He  also  left  a  last  will,  dated  in  1889,  in  which  he  devised 
and  bequeathed  his  entire  property  to  his  son,  Phil.  F.  Burns. 

Numerous  witnesses  were  examined  at  the  trial,  the  evidence  of 
some  of  them  tending  to  prove  sanity,  and  that  of  others  to  prove 
insanity.  The  evidence  consisted  of  the  opinion  of  witnesses,  the 
conduct  and  language  of  the  testator  at  different  times,  from  a  time 
recently  before  the  date  of  the  will  running  back  to  about  the  close 
of  the  late  war,  when  he  received  a  severe  blow  on  his  head. 

It  is  not  denied  that  declarations  of  the  testator  made  at  the  time 
of  signing  the  will  are  competent.  They  are  a  part  of  the  res  gestae. 
I  Thomas  Coke  761,  763,  763n.  The  declarations  and  conduct  of  the 
testator,  both  before  smd  after  he  signed  the  will,  are  competent  as 
to  the  condition  of  his  mind  at  the  time  he  signed  it.  They  are  the 
pointers  of  the  controlling  fact  involved  in  the  issue  to  be  submitted 
to  the  judgment  and  discretion  of  the  jury  as  rational  men.  These 
acts  and  declarations  are  not  received  as  a  part  of  the  res  gestae  but 
whether  made  long  before  or  after  making  the  will  is  immaterial  as 
to  their  competency.  They  are  circumstances  uttered  by  one  having 
an  interest,  going  to  the  jury  with  such  weight  and  credit  as  that 
tribunal  may  give  them,  whose  province  it  is  to  try  the  facts  and 
also  to  pass  upon  the  truth  of  these  circumstances. 

Brror. 

'Montgomery,  J.,  dissents. 


LANE  V.  MOORE. 
15J  Mass.     (1890) 


Tort,  by  the  administrator  of  the  estate  of  Nathan  W.  Fellows,  for 
the  conversion  of  a  promissory  note. 

C.  Allen,  J.  The  only  question  argued  is  as  to  the  competency 
of  the  declarations  made  by  the  plaintiff's  intestate  after  the  time  of 
the  alleged  gift  to  the  defendant.     Where  the  mental  condition  of  a 


/ 


DecIvArations  Part  of  Rbs  Gestae  397 

person  at  a  particular  time  is  in  issue,  his  appearance,  conduct,  acts, 
and  declarations,  after  as  well  as  before  the  time  in  question,  have 
been  held  admissible  in  evidence  if  sufficiently  near  in  point  of  time, 
and  if  they  appear  to  have  any  tendency  to  show  what  that  mental 
condition  was.  The  question  has  usually  arisen  in  cases  involving  the 
validity  of  wills,  but  the  principle  is  the  same  where  the  validity  of  a 
gift  is  questioned,  and  where  responsiblity  for  crime  is  to  be  deter- 
mined. Thailer  v.  Bumstead,  99  Mass.  112,  122,  123.  Lewis  v. 
Mason,  109  Mass.  169.  May  v.  Bradlee,  127  Mass.  414,  420,  Potter 
V.  Baldwin,  133  Mass.  427,  429.  Whitney  v.  Wheeler,  116  Mass.  490. 
Commonwealth  v.  Pomeroy,  ii7*Mass.  143,  148.  Commonwealth  v. 
Damon,  136  Mass.  441,  448.  So  where  the  question  was  whether  a 
testator  by  cancelling  a  will  intended  to  revive  a  former  will,  it  was 
considered  that  his  subsequent  declarations  were  competent  for  the  pur- 
pose of  showing  what  his  intention  was.  Pickens  v.  Davis,  134  Mass. 
252,  257,  258,  and  cases  there  cited.  In  all  such  cases,  the  evidence 
is  received  merely  for  the  purpose  of  throwing  light  upon  the  state 
of  mind  of  the  person  at  the  time  in  question,  and  not  as  tending  to 
establish  the  truth  of  any  facts  which  may  have  been  stated  by  him. 

There  are  certain  proper  limitations  to  the  admissibility  of  such  evi- 
dence. One  is,  that  the  matters  testified  of  should  be  sufficiently  near 
in  point  of  time,  so  that  the  testimony  may  be  of  value  in  determining 
the  question  which  is  directly  in  issue.  Another  proper  limitation  is, 
that  the  testimony  should  appear  to  have  some  natural  bearing  upon 
the  mental  condition  of  the  person,  or  his  intention  at  the  particular 
time  which  is  immediately  involved  in  the  issue. 

In  the  present  case,  it  is  impossible  to  say  that  the  judge  has  mis- 
applied any  rule  of  law.  There  was  enough  evidence  of  an  impair- 
ment of  the  mental  faculties  of  the  plaintiff's  intestate,  before  and  at 
the  time  of  the  alleged  gift  to  the  defendant,  to  warrant  the  introduc- 
tion of  evidence  as  to  his  condition  afterwards. 

Bxceptions  overruled. 


ELMER  V.  FESSENDEN. 
J51  Mass.  S5g.     (i8po) 


Tort  for  slander.    The  declaration  alleged  that  the  (defendant,  who 
was  a  physician,  falsely  informed  certain  employees  of  the  plaintiff,' 


398  Cases  on  Evidence 

who  was  a  manufacturer  of  whip-snaps  from  silk  thread,  that  the  silk 
thread  which  was  furnislied  them  by  the  plaintiff,  and  which  they  were 
compelled  to  manipulate  in  their  work,  contained  arsenic,  as  a  result  of 
which  information  they  ceased  to  work  for  the  plaintiff;  and  that 
the  plaintiff  had  suffered  in  the  loss  of  their  services  certain  specified 
damage  in  his  business.  The  answer  contained  a  general  denial,  and 
also  alleged  that  whatever  words  were  spoken  were  privileged.  Trial 
was  in  the  Superior  Court  before  Barker,  J.  who  allowed  a  bill  of 
exceptions  in  substance  as  follows : 

"The  plaintiff  introduced  evidence  tending  to  show  that  he  was, 
during  1887,  ^  manufacturer  of  whip-snaps  from  silk  thread  in  Ash- 
field,  which  thread  his  employees  there  resident  were  compelled  to 
manipulate;  and  that  in  the  month  of  June,  1887,  the  defendant,  who 
was  a  physician  in  that  town,  had  cirUilated  the  report  that  he  had 
sent  some  of  the  silk  thread  used  in  the  manufacture  to  the  state 
board  of  health  for  analysis,  and  received  from  that  board  a  report 
that  it  contained  arsenic  in  sufficient  quantities  to  be  dangerous  to  the 
employees  using  it  in  the  way  they  did.  The  witness  who  testified 
to  these  facts  had  also  testified  that  he  was,  and  had  been  from  March, 
1887,  the  agent  of  the  plaintiff  who  superintended  this  business,  and 
he  was  permitted — on  the  assurance  of  the  plaintiff's  counsel  that 
he  expected  to  prove  later  that  certain  of  the  employees,  for  the  loss 
of  whose  services  damages  were  specified  in  the  declaration,  had 
stopped  work  by  reason  of  the  statement  of  the  defendant  to  them 
above  referred  to  relative  to  the  report  of  the  board  of  health — to 
testify  that  these  employees  stopped  work  on  the  nth  day  of  June, 
1887,  ^or  some  time.  The  plaintiff  then,  to  prove  the  reason  why  they 
stopped  work,  asked  the  witness  whether  they  gave  any  reason  for 
stopping  work.  This  question  was  excluded  by  the  court.  The 
plaintiff  afterwards  asked,  'What,  if  anything,  did  they  say  as  the 
reason  for  stopping?'    This  question  the  court  also  excluded." 

Afterwards  the  plaintiff  called  as  a  witness  Anna  M.  Brackett,  of 
Ashfield,  who  testified  that  she  was,  in  June,  1887  in  the  employment 
of  the  plaintiff;  and  that  in  the  first  part  of  that  month  she  stopped 
making  as  many  whip-snaps  as  before  because  she  heard  there  was 
poison  in  the  silk.  She  was  then  asked  by  the  plaintiff  from  whom 
she  heard  this,  and  she  said  she  could  not  remember.  Thereupon  the 
plaintiff's  counsel,  after  stating  to  the  judge  that  the  plaintiff  could 
not  identify  the  person  repeating  this  report  to  her,  or  produce  any 
further  evidence  that  it  originated  from  the  defendant,  except  evi- 
dence that  the  defendant  had  circulated  identical  statements,  and  that 


Declarations  Part  of  Res  Gestae  399 

the  informant  of  the  witness  stated  to  her  that  the  report  came  from 
the  defendant,  further  inquired  of  her,  "What  was  the  report  which 
you  heard  in  June,  1887,  which  caused  you,  as  you  have  testified,  to 
make  a  less  number  of  whip-snaps?"  This  question  the  judges  ex- 
cluded. The  further  question  was  then  asked  her  by  the  plaintiff, 
"From  whom  was  the  report  stated  to  you  to  have  come,  if  from  any 
one?"    This  question,  the  judge  also  excluded. 

There  was  evidence  tending  to  show  that  the  question  whether 
there  was  arsenic  in  the  silk  had  been  a  matter  of  discussion  among  f 
the  plaintiff's  employees  and  in  the  community  in  Ashfield  since  the 
preceding  February;  that  several  of  the  employees  had  received  medi- 
cal advice  that  there  was  arsenic  in  it,  but  their  work  had  not  fallen 
off  before  June  i ;  and  that  in  fact  there  was  no  arsenic  in  the  silk. 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff 
alleged  exceptions.    . 

Holmes,  J.  It  was  a  part  of  the  plaintiff's  case  that  the  cause  of 
his  workmen  leaving  his  employment  was  the  defendant's  false  story. 
If,  as  may  be  assumed,  the  excluded  testimony  would  have  shown  that 
the  workmen  when  they  left  gave  as  their  reason  to  the  superintendent 
that  the  defendant  had  told  them  that  the  board  of  health  reported 
arsenic  in  the  silk,  the  evidence  was  admissible  to  show  that  their 
belief  in  the  presence  of  poison  was  their  reason  in  fact.  Lund  v. 
Tyngsborough,  9  Cush.  36,  41,  43.  Aveson  v.  Kinnaird,  6  East  188, 
193.  Hadley  v.  Carter,  8  N.  H.  40,  43.  United  States  v.  Penn,  13 
Bankr.  Reg.  464,  467.  We  cannot  follow  the  ruling  at  nisi  prius  in 
Tilk  v.  Parsons,  2  C.  &  P.  201,  that  the  testimony  of  the  persons 
concerned  is  the  only  evidence  to  prove  their  motiyes.  We  rather 
agree  with  Mr.  Starkie,  that  such  declarations  made  with  no  apparent 
motive  for  misstatements  may  be  better  evidence  of  the  maker's 
state  of  mind  at  the  time,  than  the  subsequent  testimony  of  the  same 
persons.     Stark.  Ev.  (loth  Am.  ed.)  89. 

As  a  rule  such  declarations  are  not  evidence  of  the  past  facts  which 
they  may  recite.  The  cases  in  which  they  have  been  admitted  to 
prove  the  cause  of  a  wound  or  injury,  when  the  declarations  were 
made  at  the  time,  or  immediately  after  the  event,  if  not  exceptions 
to  the  general  rule,  at  least  mark  the  limit  of  admissibility.  Com- 
monwealth V.  Hackett,  2  Allen  136,  140.  Commonwealth  v.  M'Pike, 
3  Cush.  181,  184.  Insurance  Co.  v.  Mosely,  8  Wall.  397.  The  ex- 
cluded testimony  was  not  competent  to  prove  that  the  defendant  did 
tell  the  workmen  the  story.  As  to  that,  it  was  mere  hearsay,  and 
was  not  within  the  scope  of  the  special  reasons  which  led  to  the  de- 


400  Casks  on  Evidence 

cisions  last  cited.  Roose  v.  Boston  Loan  Co.,  132  Mass,  439. 
Chapin  v.  Marlborough,  9  Gray  244.  Bacon  v.  Charlton,  7  Gush.  581, 
586.  Aveson  v.  Kinnaird,  6  East  188.  People  v.  Thornton,  74  Calif. 
482,  486.  It  is  admitted,  however,  that  there  was  independent  tes- 
timony that  the  defendant  spoke  to  the  workmen,  and  therefore  the 
exceptions  must  be  sustained. 

Bxceptions  sustained. 


INNESS  V.  RAILROAD  CO. 
168  Mass.  4S2.     (18^7) 

Tort,  under  Pub.  Sts.  c.  112,  sec.  212,  for  causing  the  death  of  the 
plaintiff's  intestate,  as  passenger,  by  the  gross  negligence  of  the  de- 
fendant's servants.  Trial  in  the  Superior  Court,  before  Maynard,  J., 
who,  at  the  close  of  the  evidence,  directed  the  jury  to  return  a  verdict 
for  the  defendant;  and  the  plaintiff  alleged  exceptions,  the  nature  of 
which  appears  in  the  opinion. 

Holmes,  J.  There  was  evidence  that  the  intestate  had  just  gone 
up  the  steps  and  reached  the  platform  of  a  car,  when  the  train  of 
which  the  car  was  a  part,  and  which  had  been  delayed  by  snow,  was 
run  into  by  a  later  train,  and  he  was  thrown  off  and  killed.  The  ques- 
tion argued  is  whether  there  was  any  evidence  that  he  was  a  passenger 
at  the  time.  The  train  upon  which,  according  to  the  evidence  men- 
tioned, he  had  just  entered,  was  bound  for  Boston,  his  destination. 
It  was  at  rest,  and  of  course,  if  he  had  reached  the  platform  on  his 
way  into  the  car  he  had  got  far  enough  to  have  the  right  of  a  pas- 
senger, so  far  as  his  position  is  concerned.  But  it  is  urged  that  his 
general  practice  was  to  travel  by  a  street  railway,  and  that,  on  the 
evidence  properly  admitted,  it  is  as  likely  that  he  was  crossing  the 
platform  on  his  way  to  the  electric  cars  as  that  he  intended  to  go 
by  steam.  It  also  is  argued  that,  as  it  does  not  appear  that  he  had 
a  ticket  or  the  money  to  pay  for  one,  it  does  not  appear  that  he  had 
the  rights  of  a  passenger  whatever  his  intent. 

At  the  time  of  the  accident,  no  electric  cars  were  running  because 
of  a  snow  storm.  There  was  testimony  that  the  street  railway  could 
be  seen  from  the  intestate's  house,  and  that  less  than  a  quarter  of  an 
hour  before  the  accident  the  intestate  looked  out  in  the  way  he  al- 
ways did  to  see  if  the  electric  cars  were  there,  and  then  left  in  a 


De;clarations  Part  of  Res  Gestae  401 

hurry  saying  that  he  was  going  to  take  the  train,  as  there  were  no 
electric  cars  running.  The  admission  of  this  statement  was  excepted 
to,  but  was  proper.  If  either  his  intent  or  his  belief  that  no  electric 
cars  were  running  was  material,  his  statement  at  a  moment  when  he 
had  no  interest  to  make  evidence  was  admissible  to  show  the  state 
of  his  mind,  within  the  established  exception  to  the  rule  against  hear- 
say. Commonwealth  v,  Trefethern,  157  Mass.  180.  Clearly  his  be- 
lief, especially  when  shown  to  have  been  correct,  was  material,  as  it 
would  have  the  taking  of  the  steam  cars  for  its  natural  consequence, 
and  so  would  show  the  probable  intent  with  which  he  got  upon  them. 
His  intent  so  shortly  before  the  act  to  be  interpreted,  being  in  accord 
with  what  was  to  be  expected  from  his  belief,  also  was  admissible, 
and  might  have  been  presumed  to  continue,  as  indeed  it  might  have 
been  found  to  exist  without  direct  evidence. 

Exceptions  sustained. 


CHICAGO  &  ALTON  R.  R.  CO  v.  MAHON  AND  HUNT. 
42  III.  158.     (1866) 

This  was  an  action  of  trespass  on  the  case,  brought  in  the  court 
below  by  Mahan  &  Hunt  against  the  Qiicago  and  Alton  Railroad 
Company,  in  which  the  plaintiffs  recovered.  The  defendant  took  this 
appeal.    The  opinion  of  the  court  contains  a  statement  of  the  case. 

Lawrence,  J,  This  action  was  brought  by  Mahan  &  Hunt  against 
the  railway  company  to  recover  the  value  of  goods  destroyed  by  fire 
communicated  from  the  locomotive.  One  of  the  questions  made  upon 
the  trial  was  whether  the  goods  belonged  tp  Mahan  &  Hunt,  or  to 
Hunt  singly.  In  order  to  prove  the  joint  ownership,  the  plaintiffs 
were  permitted  to  introduce  in  evidence  the  declarations  of  the  plain- 
tiffs as  to  their  partnership.  The  defendants  then  offered  the  record 
of  a  suit  brought  by  Hunt  alone  against  the  company  to  recover  the 
value  of  these  goods.  The  evidence  was  not  admitted.  This  was 
error.  The  record  was  proper  evidence  as  against  Hunt,  and  in  re- 
buttal of  his  declarations  as  to  the  fact  of  partnership.  It  was  an 
admission  by  Hunt  that  there  was  no  partnership,  or  claim  by  him 
that  he  was  the  sole  owner  of  the  goods,  and,  although  this  could  not 
prejudice  the  rights  of  Mahan,  if  he  was  really  a  partner,  yet  it  was 
competent  evidence  to  go  to  the  jury,  on  this  issue,  so  far  as  the 


402  Cases  on  Evidence 

plaintiffs  had  been  permitted  to  prove  the  declarations  of  Hunt,  in 
their  own  favor.  If  the  plaintiffs  could  prove  the  declarations  of 
Hunt  to  the  effect  that  there  was  a  partnership,  the  defendant  should 
certainly  be  permitted  to  prove  his  declarations  that  there  was  not. 

Judgment  reversed. 


ILLINOIS  CENTRAL  R.  R.  CO.  v.  SUTTON. 
42  III.  438.     (1866) 

This  was  an  action  of  trespass  on  the  case,  instituted  by  the  appel- 
lee, in  the  court  below,  against  the  appellant,  as  a  common  carrier, 
for  the  ejecting  of  the  appellee,  who  was  a  passenger,  from  the  cars 
of  the  appellant. 

Damages  claimed  $10,000.    Plea,  the  general  issue. 

At  the  October  Term,  1866,  of  the  Champaign  Circuit  Court,  the 
cause  was  tried  before  a  jury,  who  found  the  defendant  guilty,  and 
assessed  the  plaintiff's  damages  at  $470,  besides  the  costs  of  suit.  A 
motion  for  a  new  trial  was  made,  which  the  court  overruled,  and  there- 
upon rendered  judgment  upon  the  verdict.  Whereupon  the  defendant 
prayed  an  appeal  to  this  court.  The  points  in  the  case  upon  which 
error  is  assigned  are  fully  stated  in  the  opinion  of  the  court. 

Lawrence,  J.  This  case,  in  its  essential  features,  is  like  that  of 
the  Chicago  &  Alton  R.  R.  Co.  v.  Flagg,  decided  at  the  present  term. 
We  held,  in  that  case,  when  a  railway  company  carries  passengers 
in  a  car  attached  to  a  freight  train,  and  adopts  a  regulation  requiring 
tickets  to  be  purchased  before  entering  the  train,  and  a  passenger 
disregards  the  rule,  he  can  only  be  expelled  from  the  train  at  a  regu- 
lar station.  It  is  urged  that  this  provision  of  the  statute,  forbidding 
passengers  to  be  elsewhere  expelled  applies  only  to  the  case  of  refusal 
to  pay  the  fare  and  not  to  a  violation  of  any  other  reasonable  rule. 
But  the  willful  neglect  to  buy  a  ticket  at  the  time  and  place  required 
by  the  rules,  and  the  refusal  to  pay  the  fare,  are  substantially  the 
same  offense  against  the  rights  of  the  road,  and  the  former  can  be 
visited  by  no  heavier  penalty  than  the  latter.  But  in  this  case,  as  in 
the  other  above  referred  to.  there  was  no  satisfactory  proof  that  the 
plaintiff  was  cognizant  of  the  rule,  and  he  offered  to  pay  his  fare 
to  the  conductor,  who  refused  to  receive  it,  and  compelled  him  to  leave 
the  train  at  some  distance  from  a  station.     He  was,  indeed,  informed 


Declarations  Part  of  Res  Gestae  403 

of  the  rule  just  before  the  train  started,  and  then  sought  to  buy  a 
ticket,  but  the  office  was  closed.  Under  these  circumstances  he  was 
clearly  entitled  to  his  action. 

Plaintiff  claims  to  have  been  suffering  from  disease,  and  that  it 
was  aggravated  by  the  walk  incident  to  his  expulsion  from  the  cars. 
To  prove  this,  a  physician  was  examined,  who  testified  he  visited  the 
plaintiff  and  found  him  suffering  much  pain ;  that  he  had  been  attend- 
ing him  for  two  years,  and  had  cautioned  him  against  severe  exercise, 
and  that  the  plaintiff  informed  him  that  his  present  condition  was 
caused  by  overexertion  in  walking.  The  defendant  moved  the  court 
to  exclude  so  much  of  this  evidence  as  related  to  what  the  plaintiff 
said  of  the  cause  of  his  condition.  This  the  court  refused  to  do,  and 
in  this  decision  there  is  error.  A  physician,  when  asked  to  give  his 
opinion  as  to  the  cause  of  a  patient's  condition  at  a  particular  time, 
must  necessarily,  in  forming  his  opinion,  be,  to  some  extent,  guided 
by  what  the  sick  person  may  have  told  him,  in  detailing  his  pains 
and  sufferings.  This  is  unavoidable,  and  not  only  the  opinion  of  the 
expert  founded  in  part  upon  such  data,  is  receivable  in  evidence,  but 
he  may  state  what  his  patient  said,  in  describing  his  bodily  condition, 
if  said  under  circumstances  which  free  it  from  all  suspicion  of  being 
spoken  with  reference  to  future  litigation,  and  give  it  the  character 
of  res  gestae.  But  to  permit  a  party  to  prove  what  he  himself  stated 
to  his  physician,  not  in  regard  to  the  character  of  his  malady,  but 
in  reference  to  its  specific  cause,  when  that  is  one  of  the  issues 
before  the  jury,  would  be  carrying  an  acknowledged  departure  from 
the  ordinary  rules  of  evidence,  having  its  origin  in  necessity,  to  a 
most  dangerous  extent.     State  of  Vermont  v.  Davidson,  30  Vt.  377. 

The  propriety  of  enforcing  this  rule  in  the  present  case  is  manifest 
from  a  careful  consideration  of  the  evidence.  The  physician  was 
asked  as  to  his  professional  opinion  of  the  cause  of  the  plaintiff's 
illness.  This  opinion  he  gives  nowhere  in  his  testimony,  but,  instead 
thereof,  he  states  that  the  plaintiff  said  his  sickness  was  caused  by 
over-exercise  in  walking.  True,  the  physician  says  he  had  cautioned 
the  plaintiff  against  over-exercise  in  walking,  and  that  walking  would 
injure  him,  but  he  does  not  give  his  professional  opinion,  that  the  ill- 
ness, which  confined  the  plaintiff  for  several  weeks,  was  due  spe- 
cifically to  that  cause,  although  that  impression  is  allowed  to  be  made 
upon  the  minds  of  the  jury.  It  seems  to  us  not  impossible  the  physi- 
cian may  have  been  unwilling  to  state,  as  his  own  belief,  that  the 
plaintiff's  long  confinement  was  due  to  the  walk  taken  by  him  after 
having  been  expelled  from  the  railway  train.    That  expulsion  occurred 


404  Cases  on  Evidence 

only  between  one  and  two  miles  from  the  station.  It  appears  in  the 
testimony  that  plaintiff  "was  walking  about  the  premises,"  while  wait- 
ing for  the  train  at  the  station.  He  was  engaged  in  the  tin  and  hard- 
ware business,  and  two  of  his  witnesses  swear  his  time  was  worth 
fifty  dollars  per  day.  If  that  was  true  he  must  have  been  leading  a 
life  of  great  activity.  We  can  well  see,  therefore,  that  the  physician 
may  have  been  in  doubt  as  to  whether  the  walk  of  that  day  caused 
his  illness,  and  whether  in  doubt  or  not  he  should  not  have  been  per- 
mitted, against  the  objection  of  the  defendant,  to  give  the  jury  the 
statement  of  the  plaintiff  in  lieu  of  his  own  professional  opinion.  It 
is  urged  by  counsel  for  appellee,  that  the  fact  of  his  having  been 
obliged  to  walk  from  one  to  two  miles  is  proved  by  other  witnesses. 
That  is  true,  but  the  question  was,  whether  his  illness  was  attributable 
to  that  walk,  and  on  that  point  the  only  direct  evidence  in  the  record 
was  the  statement  of  the  plaintiff  himself.  Perhaps  the  jury  would 
have  presumed  this  from  the  fact,  that  the  illness  immediately  fol- 
lowed the  walk,  and  from  the  statement  of  the  physician,  that  the 
plaintiff  had  for  a  long  time  been  suffering  from  a  disease  which 
would  be  aggravated  by  severe  exercise.  But  we  cannot  tell  how  far 
the  jury  may  have  been  influenced  in  fixing  the  damages  by  this  state- 
ment of  the  plaintiff,  given  to  them  through  the  physician,  and,  as 
it  was  illegal  evidence,  we  must  reverse  the  judgment,  and  remand 
the  cause  for  another  trial. 

Judgment  reversed. 


STATE  OF  VERMONT  v.  DAVIDSON. 
3oVt.377.    (1858) 

Indictment  in  three  counts  for  highway  robbery,  and  assault  with 
intent  to  rob,  and  assault  with  intent  to  kill,  respectively,  upon  the 
person  of  Michael  Baldwin. 

The  jury  returned  a  general  verdict  of  guilty. 

Redfield,  Ch.  J.  The  first  question  is  in  regard  to  the  admis- 
sion of  the  statement  of  Baldwin,  at  the  time  he  was  first  discovered 
by  the  witnesses. 

It  is  well  settled  that  the  declarations  of  a  party,  injured  when  no 
one  is  present,  are  not  evidence  to  show  the  manner  in  which  the 
injury  occurred  however  nearly  contemporaneous  with  the  occurrence. 


Declarations  Part  of  Res  Gestae  405 

Such  declarations  do  not  tend  to  characterize  the  transaction,  and  are, 
by  consequence,  no  part  of  it,  and  cannot  be  admitted  as  such.  This 
has  been  decided  in  this  State  with  reference  to  injuries  upon  the 
highway  when  no  one  was  present  who  could  be  a  witness. 

The  declarations  of  the  party  are  received  to  show  the  extent  of 
latent  injuries  upon  the  person,  upon  the  general  ground  that  such 
injuries  are  incapable  of  being  shown  in  any  other  mode  except  by 
such  declarations  as  to  their  effect,  but  they  are  not  admitted  as  part 
of  the  res  gestae. 

Hence  it  clearly  would  not  have  been  competent  to  show  that 
Baldwin  said,  when  first  discovered,  that  he  had  been  robbed,  or  that 
he  had  been  robbed  by  the  respondent,  although  undoubtedly  such  a 
statement  would  have  some  effect  in  convincing  the  jury  that  such 
was  the  fact.  But  it  is  merely  hearsay,  and  depends  for  its  force 
wholly  upon  the  veracity  of  the  speaker  and  the  circumstances  under 
which  it  was  uttered.  And  it  does  not  tend  to  characterize  any  act  of 
the  party  speaking. 

The  testimony  objected  to  in  the  present  case  was  simply  an  inquiry 
in  other  words,  if  the  witnesses  had  seen  the  respondent,  and  it  is 
relied  upon  as  equivalent  to  a  declaration  that  Davidson  had  robbed 
him.  It  is  indeed  of  less  force  than  that,  and  is  clearly  inadmissible, 
upon  the  question  of  proving  the  corpus  delicti  towards  proving  which 
it  seems  to  have  gone  to  the  jury. 

Can  this  be  received  as  part  of  the  res  gestae,  which  means,  as  part 
of  the  transaction?  Of  what  transaction,  it  may  be  inquired?  The 
transaction  of  the  robbery,  upon  the  theory  of  the  government,  was 
fully  completed  some  time  before  this  declaration  was  made.  There 
was  no  transaction  then  in  progress,  of  which  this  declaration  could 
form  a  part,  unless  it  was  the  pursuit  of  the  respondent  by  Baldwin. 
And  it  is  difficult  to  see  how  that  had  any  tendency  to  show  that  a 
robbery  had  been  committed,  however  it  might  bear  upon  the  ques- 
tion whether  the  respondent  was  the  party  whose  agency  had  produced 
the  injury,  whatever  it  was.  There  seems  to  have  been  no  great 
question  that  the  respondent  was  the  only  party  who  had  been  with 
Baldwin  after  he  was  last  seen  a  few  rods  east  of  the  point  where 
he  was  then  found.  And  if  the  injuries  of  Baldwin  were  not  acci- 
dental, of  which  there  seems  no  great  probability,  from  the  testimony 
detailed,  it  may  be  said  there  was  not  much  question  that  the  re- 
spondent had  some  agency  in  their  production.  But  we  do  not  per- 
ceive that  the  fact  that  Baldwin  was  pursuing  the  respondent  tended 
to  show  that  the  case  was  one  of  robbery  rather  than  of  conflict. 


4o6  Cases  on  Evidence  ^ 

Baldwin  would  have  been  about  as  likely  to  pursue  him  In  the  one 
case  as  the  other. 

The  mere  fact  of  pursuit  is  not  then  competent  evidence  to  prove 
the  robbery,  to  which  end  it  was  suffered  to  go  to  the  jury,  notwith- 
standing the  remonstrances  of  the  respondent's  counsel. 

For  so  long  as  it  is  supposable  that  the  injury  may  have  happened 
by  accident  or  possibly  by  other  hands,  the  mere  pursuit  may  have 
been  to  overtake  the  respondent  as  a  friend  to  gain  relief.  The  pur- 
suit of  the  respondent  by  Baldwin,  being  then  consistent  with  more 
than  one  theory  of  the  production  of  the  injury,  the  fact  does  not 
tend  to  prove  the  case  charged  in  the  indictment.  The  corpus  delicti 
must  be  assumed  to  be  proved  before  the  pursuit  becomes  of  any  im- 
portance, and,  the  testimony  having  been  objected  to,  and  no  instruc- 
tion being  given  as  to  its  effect,  it  possibly  might  have  been  viewed 
by  the  jury  as  possessing  some  intrinsic  importance,  from  the  mere 
fact  that  it  was  ruled  in,  notwithstanding  objection,  which  otherwise 
it  would  not  have  had  in  their  minds.  And  as  it  went  into  the  case 
and  was  left  to  the  jury  as  tending  to  prove  the  corpus  delicti,  it  is 
impossible  to  maintain  its  competency.  And  we  do  not  decide  that  it 
had  any  legal  tendency  to  identify  the  guilty  party.  But  if  it  were 
confined  to  that  point  and  that  were  the  only  difficulty,  I  could,  I 
think,  make  it  a  circumstance  of  some  slight  weight,  and  legitimately 
entitled  to  be  considered  if  left  to  the  jury  upon  that  point  only. 

Verdict  set  aside  and  new  trial  granted. 


LAKE  STREET  EL.  R.  R.  CO.  v.  SHAW. 
203  III.  3p.     (1903) 

This  is  an  action  on  the  case,  brought  by  the  appellee  in  the  Circuit 
Court  of  Cook  county  against  the  appellant,  to  recover  damages  for 
a  personal  injury  alleged  to  have  been  sustained  by  her  in  conse- 
quence of  the  negligence  of  the  appellant. 

The  appellant  filed  the  general  issue,  and  upon  the  trial  the  jury 
returned  a  verdict  in  favor  of  appellee  for  $5,000,  upon  which  verdict, 
after  overruling  a  motion  for  a  new  trial,  the  court  rendered  judg- 
ment, which  judgment  was  affirmed  by  the  Appellate  Court  for  the 
First  District,  and  -a  further  appeal  has  been  prosecuted  to  this  court. 

Hand,  J.     It  is  first  contended  that  the  court  erred  in  declining  to 


Declarations  Part  of  Res  Gestae  407 

take  the  case  from  the  jury  upon  the  motion  of  the  appellant,  made  at 
the  close  of  all  the  evidence,  on  the  ground  that  there  was  a  variance 
between  the  proof  and  the  declaration. 

It  is  further  contended  that  the  court  erred  in  admitting  improper 
evidence  on  behalf  of  appellee.  Mary  T.  Fitzgerald,  a  servant  of 
appellee,  was  called  as  a  witness.  After  stating  she  saw  appellee  upon 
the  evening  on  which  she  was  injured,  she  was  asked :  "What  did 
you  notice  about  her?"  to  which  she  replied:  "I  saw  that  her  knee 
was  bruised, — ^the  right  knee  and  the  hip.  She  complained  of  a  pain 
in  her  right  hip  that  way,  and  her  face;"  and  after  stating  that  the 
appellee  was  confined  to  her  bed  for  five  weeks,  she  was  asked, 
"What  did  you  notice  about  her  during  the  five  weeks?"  to  which 
she  replied,  "She  complained  of  pain  very  much  all  the  time."  The 
appellant  moved  to  strike  out  of  the  answer  to  the  first  question 
the  words  "she  complained  of  pain  in  the  right  hip,"  and  the  entire 
answer  to  tl;ie  second  question,  but  the  court  denied  the  motion  and 
allowed  both  answers  as  given  to  stand.  There  was  a  conflict  in  the 
evidence  as  to  the  extent  and  character  of  the  injury  sustained  by 
appellee.  The  appellee  claimed  she  sustained  a  severe  injury  to  the 
right  hip,  while  two  physicians  (one  her  family  physician)  who  saw 
her  on  the  evening  after  the  injury,  testified  that  it  was  her  left  side 
that  was  injured  and  that  her  right  hip  was  not  injured,  but  that 
her  right  hip  was  subsequently  injured  by  a  fall  upon  the  sidewalk. 
To  permit  the  witness  Fitzgerald  to  testify  that  "she  complained  of 
pain  in  her  right  hip,"  and  "she  complained  of  pain  very  much  all  the 
time,"  was  in  eflfect,  to  permit  the  witness  to  give  hearsay  evidence 
and  the  appellee  to  make  evidence  for  herself  (Illinois  Central  Rail- 
road Co.  V.  Sutton,  42  111.  438;  West  Chicago  Street  Railroad  Co.  v. 
Carr,  170  id.  478;  West  Chicago  Street  Railroad  Co.  v.  Kennelly,  id. 
508;  Springfield  Consolidated  Railway  Co.  v.  Hoefner,  175  id.  634); 
and  in  view  of  the  conflicting  evidence  was  reversible  error.  In 
Springfield  Consolidated  Railway  Co.  v.  Hoeff^ner,  supra,  it  was  said 
(p.  643)  referring  to  the  Carr  and  Kennelly  cases:  "The  rule  laid 
down  in  these  cases  is,  that  declarations  as  to  the  pain  and  suffering 
of  the  injured  party,  when  made  by  such  party,  are  only  competent 
if  made  at  the  time  of  the  injury,  so  as  to  constitute  a  part  of  the  res 
gestcE,  or  when  made  to  a  physician  during  treatment." 

Reversed  and  remanded. 


4o8  Cases  on  Evidence 

ROOSA  V.  BOSTON  LOAN  CO. 
132  Mass.  4S9-     (18B2) 

Tort  for  assault  and  battery.  At  the  trial  in  the  Superior  Court, 
before  Brigham,  C.  J.,  the  jury  returned  a  verdict  for  the  plaintiff; 
and  the  defendant  alleged  exceptions,  which  appear  in  the  opinion. 

Endicott,  J.  When  the  bodily  or  mental  feelings  of  a  party  are 
to  be  proved,  his  exclamations  or  expressions  indicating  present  pain 
or  malady  are  competent  evidence;  and  in  Bacon  v.  Charlton  &  Cush. 
581,  586,  where  this  rule  is  stated,  it  was  said  by  the  court:  "Such 
evidence,  however,  is  not  to  be  extended  beyond  the  necessity  on  which 
the  rule  is  founded.  Anything  in  the  nature  of  narration  or  state- 
ment is  to  be  carefully  excluded,  and  the  testimony  is  to  be  confined 
strictly  to  such  complaints,  exclamations  and  expressions  as  usually 
and  naturally  accompany,  and  furnish  evidence  of,  a  present  existing 
pain  or  malady."  The  opinion  closes  with  this  precaution:  "These 
remarks  as  to  the  limitation  of  the  rules  are  not  intended  to  apply 
to  the  statements  made  by  a  patient  to  a  medical  man,  to  which 
a  different  rule  may  be  applicable." 

In  Chapin  v.  Marlborough,  9  Gray  244,  it  was  held,  on  the  author- 
ity of  Bacon  v.  Charlton,  that  a  physician  could  not  testify  to  a  state- 
ment made  by  the  plaintiff,  that  his  leg  had  been  struck  by  a  horse. 
And  in  Barber  v.  Merriam,  11  Allen  322,  the  question  arose,  whether 
the  plaintiff's  statements  to  her  physician,  made  after  the  suit  was 
brought,  as  to  the  character  and  seat  of  her  injuries  and  sensations, 
were  competent.  The  only  point  decided  was,  that  such  statements 
to  her  medical  adviser,  as  to  the  character  and  seat  of  her  injuries  and 
sensations,  were  admissible.  Aveson  v.  Kinnaird,  6  East  188,  195, 
and  the  Gardner  Peerage  Case,  78,  172,  175,  are  cited  as  authorities, 
where  the  statements  of  a  patient  to  a  physician  of  symptoms  and 
complaints  are  held  to  be  competent  evidence. 

In  Illinois  Central  Railroad  v.  Sutton,  42  111,  438,  the  plaintiff 
was  ejected  from  a  train.  He  contended  that  he  had  been  suffering 
from  disease,  and  that  it  was  aggravated  by  the  walk  which  he  was 
obliged  to  take  by  reason  of  his  expulsion.  His  physician  testified  as 
to  his  condition,  and  also  that  he  was  informed  by  the  plaintiff  that 
his  present  condition  was  caused  by  over-exertion  in  walking.  The 
court  held  that  the  statements  of  a  patient  to  a  physician  of  his 
pain  and  suffering,  and  in  regard  to  his  bodily  condition,  are  com- 
petent to  enable  him  to  form  an  opinion  as  to  the  extent  and  nature 


Deci^arations  Part  of  Res  Gestae  409 

of  his  injuries;  but  that  it  was  not  competent  for  the  physician  to 
testify  to  the  plaintiff's  statements  as  to  the  specific  cause  of  the 
injury,  that  being  one  of  the  issues  before  the  jury. 

The  facts  in  that  case,  as  in  Chapin  v.  Marlborough,  are  similar 
to  those  recited  in  this  bill  of  exceptions.  The  plaintiff  here  testified 
that  she  was  struck  in  the  stomach  by  the  defendant's  servant.  The 
physician  in  answer  to  the  question,  "What  did  the  plaintiff  tell  you 
about  her  condition?  replied,  "She  stated  that  she  had  received  a  blow 
in  the  stomach."  It  would  clearly  have  been  competent  for  a  physi- 
cian, after  having  testified  to  the  condition  of  the  plaintiff,  and  to 
the  complaints  and  symptoms  of  pain  and  suffering  stated  by  her, 
to  have  given  his  opinion  that  they  were  such  as  might  have  been 
expected  to  follow  the  infliction  of  a  severe  blow.  Such  evidence 
was  admitted  without  objection.  But  it  was  not  competent  for  the 
physician  to  testify  to  her  statement  that  she  had  received  a  blow  in 
the  stomach. 

While  a  witness,  not  an  expert,  can  testify  only  to  such  exclama- 
tions and  complaints  as  indicate  present  existing  pain  and  suffering, 
a  physician  may  testify  to  a  statement  or  narrative  given  by  his  patient 
in  relation  to  his  condition,  symptoms,  sensations,  and  feelings,  both 
past  and  present.  In  both  cases  these  declarations  are  admitted 
from  necessity,  because  in  this  way  only  can  the  bodily  condition 
of  the  party,  who  is  the  subject  of  the  injury,  and  who  seeks  to 
obtain  damages,  be  ascertained.  But  the  necessity  does  not  extend  to 
declarations  by  the  party  as  to  the  cause  of  the  injury,  which  is  the 
principal  subject-matter  of  inquiry,  and  which  may  be  proved  by  other 
evidence. 

Bxceptions  sustained. 


A.  T.  &  S.  F.  R.  R.  CO.  V.  JOHNS. 

36  Kan.  769  (i88r) 

Action  brought  by  Mary  Johns  against  The  Atchison,  Topeka  & 
Santa  Fe  Railroad  Company,  to  recover  damages  for  injuries  re- 
ceived by  her  while  standing  on  the  railroad  company's  station  plat- 
form at  Severy,  in  Greenwood  county,  by  reason  of  being  struck  and 
thrown  down  by  the  company's  servants  in  removing  a  trunk  from 


410  Cases  on  Evidence 

the  platform  to  the  baggage-car  of  a  train  then  standing  at  the 
station.     The  general  verdict  of  the  jury  read  as  follows : 

"We  the  jury  in  the  above-entitled  cause,  do  find  for  the  plaintiff, 
and  we  assess  her  damages  at  the  sum  of   four  thousand  dollars." 

Valentine,  J.  The  first  question  to  be  considered  in  this  court  is, 
whether  the  plaintiff  below  introduced  sufficient  evidence  to  authorize 
the  jury  to  find  in  her  favor  with  reference  to  every  essential  fact 
constituting  her  cause  of  action. 

The  plaintiff  in  error,  defendant  below,  also  claims  that  the  court 
below  committed  material  error  in  permitting  the  following  evidence 
to  be  introduced,  to  wit:  Mrs.  M.  D.  Thatcher  was  permitted  to  tes- 
tify, over  the  objections  of  the  defendant,  among  other  things,  as 
follows : 

"Well,  I  only  know  what  Mrs.  Johns  has  told  me  of  her  suffering, 
and  I  have  been  called  in  there  as  a  neighbor.  She  complained  of 
the  misery  in  her  side,  and  she  told  me  that  she  suffered  a  great 
deal  with  a  numbness  and  a  tingling  sensation  in  her  left  side,  I  be- 
lieve it  was ;  and  the  other  evening  I  was  called  over  there,  and  she 
told  me  that  she  was  suffering  now  a  great  deal  with  that  feeling, 
and  also  a  depression  about  her  heart,  she  said,  in  her  left  side,  and  she 
had  sent  for  the  physician,  I  believe,  that  evening;  and  that  was  some 
of  the  symptoms,  I  believe,  that  she  had;  of  some  kind  of  depression 
about  her  heart,  a  smothering,  I  think.  *  *  *  Mrs  Johns  has 
complained  of  her  limb  and  her  foot  to  me." 

Joseph  H.  Pitzer  was  permitted  to  testify,  over  the  objection  of 
the  defendant,  among  other  things,  as  follows : 

"Q.  Now,  Mr.  Pitzer,  state  to  the  jury  what  facts  you  may  know 
with  reference  to  her  condition,  with  reference  to  her  suffering  and 
bodily  pain  and  mental  distress.  A.  I  don't  know  anything,  only 
what  she  has  told  me  herself. 

"Q.  What  have  you  heard  her  say  about  it?  Of  what  has  she 
complained?  A.  She  has  told  me  frequently  that  she  has  suffered. 
She  complained  of  her  head  and  leg,  having  a  great  misery  in  it. 
She  complained  of  misery  in  her  side  and  hip." 

On  cross-examination  he  testified,  among  other  things  as  follows : 

"Q.  All  you  know  about  her  suffering  and  pains  since  the  injury, 
is  what  she  has  told  you,  is  it  not,  Mr.  Pitzer?    A.     That  is  all,  sir." 

We  think  it  is  well  settled  that  it  is  incompetent  to  prove  the  dec- 
larations of  an  injured  party,  or  of  a  party  suffering  from  some  cause, 
made  after  the  injury  has  happened  or  after  the  cause  of  his  suffer- 
ing has  occurred,  with  regard  to  the  facts  of  the  injury  or  the  cause 


Deci^arations  Part  of  Ri;s  Gestae  411 

of  his  suffering.  (Roosa  v.  Boston  Loan  Co.,  132  Mass.  43;  Mor- 
rissey  v.  Ingham,  1 1 1  id.  63 ;  I.  C.  R.  R.  Co.  v.  Sutton,  42  111.  438 ; 
Collins  V.  Waters,  54  id.  485;  Denton  v.  The  State,  i  Swan.  (Tenn.) 
279;  Spatz  V.  Lyons,  55  Barb.  476.)  And  even  proof  of  the  declara- 
tion of  a  party,  with  regard  to  past  suffering  or  pain,  or  past  condi- 
tions of  body  or  mind,  \s  not  competent.  (G.  R.  &  I.  Rid.  Co.  v. 
Huntly,  38  Mich.  537;  Lush  v.  McDaniel,  13  Ired.  485;  Reed  v.  N. 
Y.  C.  Railroad  Co.,  45  N.  Y.  574;  Rogers  v.  Crain,  30  Tex.  284; 
Chapin  v.  Inhabitants  of  Marlborough,  75  Mass.  244;  Rowell  v.  City 
of  Lowell,  yy  id.  420;  Emerson  v.  Lowell  Gas  Light  Co.,  88  id.  146; 
Inhag.  of  Ashland  v.  Inhab.  of  Marlbor.,  99  id.  48;  Ins.  Co.  v.  Mosely, 
75  U.  S.  397,  405.) 

There  are  probably  no  authorities  opposed  to  these  propositions, 
and  yet  there  are  authorities  which  seem  almost  to  oppose  the  last 
one,  especially  where  the  declarations  are  made  to  a  physician  or 
surgeon  while  he  is  examining  the  party  as  a  patient.  (Quaife  v. 
C.  &  N.  W.  Ry.  Co.,  48  Wis.  513;  same  case,  33  Am.  Rep.  821; 
/Barger  v.  Merriam,  93  Mass.  322;  Fay  v.  Harlan,  128  id.  244;  Gray 
V.  McLaughlin,  26  Iowa  279;  Matteson  v.  N,  Y.  C.  R.  R.  Co.,  35 
N.  Y.  487;  L.  N.  A.  &  C.  Rly.  v.  Falvey,  104  Ind.  409;  same  case, 
23  Am.  &  Eng.  Rid.  Cases,  522;  same  case,  22  Cent.  L.  J.  322.) 
Declarations,  however  of  a  party  with  regard  to  a  present  and  existing 
pain  or  suffering,  or  with  regard  to  the  present  condition  of  the  body 
or  mind  may  generally  be  shown  by  any  person  who  has  heard  them. 
(Ins.  Co.  V.  Mosely,  75  U.  S.  397;  Hatch  v.  Fuller,  131  Mass.  574; 
Denton  v.  State,  i  Swan.  (Tenn.)  279;  I.  C.  R.  R.  Co.  v.  Sutton, 
42  111.  438;  Collins  V.  Waters,  54  id.  485;  L.  N.  A.  &  C.  Rid.  Co.  v. 
Falvey,  104  Ind.  409;  same  case,  23  Am.  &  Eng.  Rid.  Cases,  522; 
same  case,  22  Cent.  L.  J.  322 ;  i  Greenl.  Ev.  sec.  102,  and  cases 
there  cited;  i  Wharton  Ev.  sec.  268,  and  cases  there  cited.)  There 
are  authorities  seemingly  opposed  to  this  last  proposition :  Reed  v. 
N.  Y.  C.  Rid.  Co.,  45  N.  Y.  574;  C.  R.  &  I.  Rid.  Co.  v.  Huntley,  38 
Mich.  537. 

We  think,  however,  that  whenever  evidence  is  introduced  tending 
to  show  a  real  injury  or  a  real  cause  for  suffering  or  pain,  as  in  this 
case,  the  declarations  of  the  party  concerning  such  suffering  or  pain 
while  it  exists  and  as  simply  making  known  an  existing  fact,  should 
be  allowed  to  go  to  the  jury  for  what  they  are  worth,  and  the  jury 
in  such  a  case  should  be  allowed  to  weigh  them  and  to  determine  their 
value.  If  they  were  made  to  a  physician  or  surgeon  while  he  was 
examining  the  party  as  a  patient,    for  the  purpose  of  medical   or 


412  Cases  on  Evidence 

professional  treatment  and  for  that  purpose  only,  the  declarations 
would  be  of  great  value.  If,  however,  they  were  made  at  any  other 
time  or  under  any  other  circumstances,  they  might  not  be  of  such 
great  value.  If  made  casually  to  some  person  not  a  physician,  and 
with  whom  the  party  had  no  particular  .relations,  they  might  pos- 
sibly in  some  cases  be  of  but  very  little  or  rio  value.  (Reed  v.  N.  Y. 
C.  R.  R.  Co.,  45  N.  Y.  574.)  Yet  generally  they  should  be  permitted 
to  go  to  the  jury  for  what  they  are  worth.  (Ins.  Co.  v.  Mosely,  75 
U.  S.  397;  Hatch  V.  Fuller,  131  Mass.  574;  Rogers  v.  Crain,  30  Tex. 
284;  Matteson  v.  N.  Y.  C.  R.  R.  Co.,  35  N.  Y.  487;  Gray  v.  McLaugh- 
lin, 26  Iowa  279 ;  Kennard  v.  Burton,  25  Me.  39 ;  The  State  v.  How- 
ard, 32  Vt.  380;  Lush  V.  McDaniel,  13  Ired.  485.) 

Also,  if  the  declarations  are  made  to  a  physician  or  other  person 
merely  for  the  purpose  of  obtaining  testimony  in  the  party's  own  case, 
they  might  be  of  very  little  value  and  possibly  might  in  some  cases 
be  wholly  excluded.  (G.  R.  &  I.  Rid.  Co.  v.  Huntley,  38  Mich.  537.) 
But  the  mere  fact  that  the  declarations  are  made  after  suit  has  been 
commenced  and  while  it  is  pending  will  not  be  sufficient  to  exclude 
the  declarations,  and  generally  they  should  be  allowed  to  go  to  the 
jury.     (Barber  v,  Merriam,  93  Mass.  322;  Hatch  v.  Fuller,  131  id. 

574.) 

In  the  present  case  we  cannot  say  that  the  court  below  committed 
any  material  error  in  admitting  the  evidence  objected  to.  Everything 
that  the  witnesses,  Mrs.  Thatcher  and  Mrs.  Pitzer,  testified  to  was 
proved  by  the  competent  testimony  of  other  witnesses.  The  injury, 
the  impaired  health,  the  suffering,  the  pain  and  the  entire  condition 
of  the  plaintiff's  body  were  fairly  shown  by  the  evidence  that  cannot 
be  questioned,  and  very  nearly  all  the  declarations  of  the  plaintiff, 
as  testified  to  by  Mrs.  Thatcher  and  Mr.  Pitzer  were  in  substance 
declarations  of  present  and  existing  pain,  suffering  and  conditions  of 
the  body,  and  not  narratives  of  past  pain,  or  suffering,  or  conditions 
of  the  body;  and  to  this  extent  they  were  unquestionably  competent. 
Those  declarations,  if  any,  which  were  not  concerning  present  and 
existing  pain,  suffering,  and  conditions  of  the  body  were  so  small  in 
amount  and  so  trifling  and  insignificant  in  their  influence,  and  were 
concerning  matters  which  were  so  thoroughly  and  incontestably  proved 
by  other  competent  evidence,  that  their  admission  by  the  court  could 
not  be  material  error. 

Judgment  of  the  court  below  will  be  affirmed. 

All  of  the  Justices  concurring. 


Dsci^RATioNS  Part  of  Res  Gestae  413 

FREDA  V.  TISHBEIN. 
174  Mich.  391.     (1913) 

Stone,  J.  This  is  an  action  of  replevin  brought  by  the  plaintiff  as 
special  administratrix  of  the  estate  of  August  Tishbein,  Sr.,  deceased, 
against  the  widow  and  son  of  said  deceased.  August  Tishbein,  Sr., 
died  intestate  on  or  about  the  3rd  day  of  October,  1910.  No  petition 
for  administration  was  filed  by  his  heirs,  but  after  due  time  a  petition 
was  filed  by  the  plaintiff  as  a  creditor  of  said  estate,  and  special 
administration  was  granted  to  her.  It  was  claimed  that  the  estate 
of  said  deceased  consisted  of  a  stock  in  trade  at  357  Gratiot  avenue, 
in  the  city  of  Detroit,  and  plaintiff,  as  special  administratrix,  brought 
an  action  of  replevin  to  obtain  possession  of  the  stock  from  the  widow 
arid  son,  who  were  in  possession  when  demand  was  made  for  the 
same.  The  record  would  indicate  that  the  defendant  August  Tish- 
bein, Jr.,  claimed  to  be  the  owner  of  the  property  when  suit  was 
commenced.  The  trial  resulted  in  a  verdict  and  judgment  for  the 
plaintiff,  and  the  defendants  have  brought  the  case  here  for  review. 

The  only  errors  upon  which  they  rely  relate  to  the  action  of  the 
trial  judge  in  admitting  certain  testimony  of  the  plaintiff  and  her 
witnesses. 

1.  It  is  the  claim  of  the  defendants  that  certain  testimony  of  the 
plaintiff  was  incompetent  under  section  10212  3  Comp.  Laws,  as 
amended,  relating  to  matters  equally  within  the  knowledge  of  the 
deceased. 

2.  That  the  court  erred  in  permitting  the  various  witnesses  of  the 
plaintiff  to  testify  as  to  statements  made  by  decedent  during  his  life- 
time while  in  possession  concerning  the  title  to  the  stock  of  goods 
in  question. 

There  is  no  evidence  that  any  such  statements  were  made  in  the 
presence  of  the  defendants  or  either  of  them,  and  it  is  the  claim  of 
the  defendants  that  such  testimony  was  clearly  hearsay,  selfserving, 
and  prejudicial. 

I.  Considering  the  matters  in  the  order  above  stated,  we  will  con- 
sider first  whether  the  testimony  of  the  plaintiff  was  within  the  terms 
of  the  statute  prohibiting  the  opposite  party,  in  a  suit  prosecuted  or 
defended  by  personal  representatives  of  the  deceased  person,  from 
testifying  to  matters  which,  if  true,  must  have  been  equally  within 
the  knowledge  of  the  deceased.  It  should  be  borne  in  mind  that  the 
plaintiff  represents  the  estate  of  the  decedent.     We  do  not  think  that 


414  Cases  on  Evidknce 

this  statute  renders  the  personal  representative  incompetent  to  tes- 
tify in  behalf  of  the  estate  as  to  matters  within  the  decedent's  knowl- 
edge. 

2.  The  other  question  is  one  of  more  difficulty.  Numerous  wit- 
nesses, including  the  plaintiff,  were  permitted  to  testify  to  conversa- 
tions with  the  decedent  while  he  was  in  possession  of  the  stock  of 
goods,  and  not  in  the  presence  of  either  of  the  defendants,  as  to  de- 
cedent's ownership  of  the  stock.  It  is  the  claim  of  the  plaintiff,  and 
seems  to  have  been  the  holding  of  the  trial  court,  that  such  evidence 
was  admissible  as  part  of  the  res  gestae  and  as  verbal  acts  character- 
izing and  explaining  the  nature  of  the  possession.  Under  this  ruling 
of  the  court  certain  testimony  was  admitted  tending  to  show  that 
the  decedent  said  that  he  owned  the  stock.  On  the  other  hand,  it  is 
the  claim  of  the  defendants  that  the  testimony  was  hearsay,  self-serv- 
ing and  prejudicial,  and  thus  inadmissible,  and  that  the  rule  in  this  State 
is  to  the  effect  that  declarations  of  the  decedent  cannot  be  shown  if 
they  are  in  favor  of  the  party  who  made  them,  and  adverse  to  the 
other  party  and  many  cases  are  cited  by  counsel  on  both  sides. 

It  will  be*  noted  that  in  this  case  the  evidence  was  offered  and  re- 
ceived as  though  there  were  some  question  qualifying  or  explanatory 
of  the  possession  of  the  decedent.  An  examination  of  the  evidence 
received  shows  that  there  was  no  question  as  to  the  nature  of  the 
possession,  nor  what  was  the  title  claimed  by  decedent.  This  evi- 
dence was  offered  to  show  who  was  the  actual  owner  of  this  prop- 
erty. It  was  material  upon  this  point,  if  material  at  all.  It  seems  to 
us  that  such  declarations  were  not  admissible ;  that  decedent  was  in 
possession  of  the  stock  of  goods  was  the  real  question  in  issue.  No 
question  was  raised  as  to  the  nature  of  his  possession,  and  nothing 
was  offered  explanatory  of,  or  qualifying,  such  possession,  and  we 
think  the  true  rule  is  that  where  the  issue  is,  not  what  was  the  nature 
of  the  possession,  nor  what  was  the  title  claimed,  but  which  party 
was  the  actual  owner,  such  declarations  are  not  admissible.  The 
danger  of  admitting  such  testimony  as  tending  to  show  who  was 
the  actual  owner  is  apparent.  It  does  not  seem  to  us  that  mere  pos- 
session may  be  termed  an  act,  so  as  to  justify  the  application  of 
this  branch  of  the  doctrine  of  res  gestae. 

The  instances,  when  the  declarations  should  be  received,  are  when 
the  character  of  the  possession,  or  nature  of  the  claim  made,  becomes 
m.aterial  with  a  view  to  the  determination  of  some  ulterior  question ; 
as,  for  instance,  cases  in  which  a  right  rests  upon  the  statute  of  limi- 
tations, and  it  is  necessary  to  show  that  the  possession  was  adverse. 


De;civArations  Part  of  Riis  Gkstae  415 

To  say  that,  in  a  case  where  the  only  issue  is  actual  ownership,  a 
party  may  support  his  title  by  proof  of  his  own  declarations  to 
third  persons  on  sundry  occasions,  not  in  the  presence  of  the  claim- 
ant, is  to  declare  that  one  may  manufacture  evidence  for  himself. 
Declarations  by  a  party  in  possession  against  interest  or  in  disparage- 
ment of  title,  are  admissible  under  a  different  rule  from  that  we  are 
here  considering.  We  think  the  evidence  should  not  have  been  re- 
ceived, and  that  it  was  prejudicial  error  to  allow  it  to  be  submitted 
to  and  considered  by  the  jury. 

For  this  error  we  are  constrained  to  reverse  the  case  and  grant  a 
new  trial. 

Steere,  C.  J.  and  Moore,  Brooke,  Kuhn,  OstrandEr  and  Bird, 
JJ.,  concurred. 


LESSOR  of  SCOTT  et  al.  v.  RATLIFFE  et  al. 
5  Peters  (U.  S.)  80.     (1831) 

Chief  Justice  Marshall.  This  is  a  writ  of  error  to  a  judgment 
rendered  in  favor  of  the  defendants,  in  an  ejectment  brought  by  the 
plaintiffs  in  the  Court  of  the  United  States,  for  the  seventh  circuit, 
and   district   of   Kentucky. 

The  plaintiffs  claimed  title  as  heirs  of  the  Reverend  James  Madison, 
deceased,  under  a  patent  issued  to  him  by  the  governor  of  Kentucky, 
on  the  8th  day  of  August,  1798.  A  verdict  and  judgment  having 
been  rendered  for  the  defendants,  the  plaintiffs  have  brought  the 
cause  into  this  court  by  writ  of  error.  The  case  depends  on  sev- 
eral bills  of  exceptions  taken  to  certain  opinions  given  by  the  court 
at  the  trial  of  the  cause. 

The  plaintiffs  gave  in  evidence  the  patent  to  their  ancestor.  It 
grants  to  the  Reverend  James  Madison  a  certain  tract  or  parcel  of 
land  containing  eighteen  hundred  and  fifty  acres,  by  survey,  &c.,  and 
"bounded  as  follows."  It  then  describes  the  exterior  lines  of  the 
whole  tract,  after  which  the  following  words  are  used;  "including 
within  said  bounds,  five  hundred  and  twenty-two  acres  of  land  en- 
tered for  John  Preston,  four  hundred  and  twenty-five  acres  for  Wil- 
liam Garrard ;  both  claims  have  been  excluded  in  the  calculation  of 
the  plot  with  its  appurtenances,"  &c. 

They   then   gave    evidence   conducing  to   prove   the   death    of   the 


4i6  Cases  on  Evidence 

grantee  before  the  institution  of  the  suit;  that  the  plaintiffs  Susannah 
and  James  C.  were  his  heirs  at  law,  and  that  the  plaintiff  Susannah 
had  intermarried  with  the  plaintiff  Robert  G.  Scott.  They  then  in- 
troduced Mrs.  Eppes  as  a  witness,  who  swore  that  she  resided  in 
Petersburg,  Virginia,  and  that  Bishop  Madison  resided  in  Williams- 
burg, Virginia;  that  while  she  resided  in  Petersburg  she  had  seen 
Bishop  Madison,  and  was  acquainted  with  his  daughter  only  by  re- 
port ;  that  she  had  never  seen  her  or  Mr.  Scott,  but  recollects  to  have 
heard  of  her  marriage  in  Petersburg,  as  she  thought,  before  the 
death  of  her  father;  that  she  could  not  state  from  whom  she  heard 
the  report,  but  she  had  three  cousins  who  went  to  college  at  the  time 
that  she  lived  in  Petersburg,  and  had  no  doubt  that  she  heard  them 
speak  of  the  marriage ;  that  she  heard  of  the  marriage  of  Miss  Madi- 
son before  her  own  marriage,  as  she  thought,  which  was  in  1810; 
that  she  was,  as  she  believed,  in  181 1,  in  Williamsburg,  and  was  told 
that  Mr.  Madison  was  dead. 

On  the  motion  of  the  defendants,  the  court  excluded  this  testimony 
as  incompetent;  and  the  counsel  for  the  plaintiffs  excepted  to  this 
opinion. 

In  considering  this  exception  some  diversity  of  opinion  has  pre- 
vailed in  this  court,  with  respect  to  that  part  of  it  which  related  to 
the  time  of  the  intermarriage  between  the  plaintiff  Robert  G.  Scott 
and  Susan  his  wife.  Some  of  the  judges  think  that  the  evidence 
given  by  Mrs.  Eppes  respecting  the  time,  as  well  as  that  respect- 
ing the  fact  of  intermarriage,  comes  within  the  general  rule  excluding 
hearsay  testimony,  which  was  laid  down  by  this  court  in  the  case  of 
Mima  Queen  and  child  against  Hepburn,  7  Cranch  290.  That  rule 
is,  "that  hearsay  evidence  is  incompetent  to  establish  any  specific  fact, 
which  fact  is  in  its  nature  susceptible  of  being  proved  by  witnesses 
who  speak  from  their  own  knowledge." 

Others  think  that  the  fact  of  the  marriage  being  established  by 
other  testimony,  the  circumstances  that  this  fact  was  communicated  to 
the  witness  before  another  event  took  place,  becomes  itself  a  fact,  and 
is  evidence  that  the  marriage  was  anterior  to  that  other  event.  It  be- 
comes unnecessary  to  decide  on  this  principle,  because  we  are  all  of 
opinion  that  so  much  of  the  testimony  of  Mrs.  Eppes  as  goes  to  prove 
the  death  of  Mr.  Madison  was  admissible,  and  ought  not  to  have 
been  excluded. 

The  judgment  is  reversed,  for  error  in  the  entire  exclusion  of  the 
testimony  of  Mrs.  Eppes;  and  the  cause  is  to  be  remanded,  with  in- 
struction to  awar4  a  venire  facias  de  novo. 


Deci^arations  Part  of  Res  Gestae  .  417 

ROGERS  V.  STATE. 
88  Ark.  451.     (1908) 

Hri.L,  Ch.  J.  Ben  Rogers  was  indicted  by  the  grand  jury  of  Craig- 
head county  for  robbery,  was  convicted,  and  has  appealed.  Fielder 
testified  that  on  the  night  of  May  31,  1908,  in  the  city  of  Jonesboro, 
he  left  a  restaurant,  and  was  accompanied  by  one  Tomlinson,  and 
the  defendant  Rogers  followed  them.  That  Tomlinson  offered  him 
a  drink  of  whisky,  which  he  refused,  and  the  defendant  stepped  up 
and  said  he  would  take  a  drink,  and  Tomlinson  handed  him  the  bottle, 
and  he  took  a  drink  and  dropped  behind  them,  with  the  bottle.  He 
and  Tomlinson  walked  under  the  shadows  of  some  trees,  and  some  one 
hit  him  from  behind  with  a  bottle  on  the  side  of  the  head  and  face  and 
he  was  knocked  senseless.  After  he  fell  some  one  beat  him  on  the  head 
and  face  with  his  fists;  and  either  Tomlinson  or  the  defendant  ran  his 
hands  in  his  pockets  and  got  his  money.  "After  I  was  hit,  I  do  not 
remember  anything  until  I  was  being  talked  to  by  Arrington,  chief 
of  police,  in  a  plumbing  shop  on  South  Main  street. 

He  was  then  permitted,  over  the  objection  of  defendant,  to  state 
that  "Mr.  Arrington  asked  me  who  robbed  me,  and  I  told  him  a  white 
man  whose  name  I  did  not  know  and  a  negro  whom  they  called  Ben." 
The  next  morning  he  went  to  the  jail  to  see  if  he  could  identify  the 
defendant,  who  had  been  arrested.  His  eyes  were  so  swollen  that 
he  could  not  see  distinctly,  and  he  asked  that  the  defendant  talk.  The 
defendant  did  so,  and  he  recognized  him  by  his  voice.  The  witness 
does  not  appear  to  have  been  cross-examined — at  least  the  bill  of 
exceptions  does  not  show  what  part  of  his  examination  is  in  chief 
and  \vhat  is  cross-examination ;  and  there  is  no  inconsistent  or  contra- 
dictory statement  in  his  testimony  indicative  that  any  part  of  it  was 
brought  out  by  cross-examination. 

Arrington,  the  chief  of  police,  was  permitted  to  testify,  over  the 
objections  of  defendant,  that  he  had  arrested  defendant  the  night 
that  Fielder  was  robbed,  and  that  he  found  Fielder  in  a  plumbing 
shop  on  South  Main  street.  "I  asked  Fielder  who  robbed  him ; 
he  said  a  white  man  and  a  negro;  that  he  did  not  know  who  the 
white  man  was,  but  they  called  the  negro  Ben  Rogers."  No  money 
or  other  property  was  found  on  the  defendant,  after  his  arrest,  that 
belonged  to  Fielder. 

It  appears  that  from  one  to  two  hours  elapsed  from  the  time 
that  Fielder  was  robbed  until  he  made  the  statement  to  the  chief  of 


4i8  Cases  on  Evidence 

police  in  the  plumbing  shop.  The  defendant  testified,  denying  that  he 
had  robbed  Fielder,  and  stated  that  he  was  at  another  place  at  the 
time  of  the  occurrence.  Several  other  witnesses  testified,  tending  to 
sustain  his  alibi. 

The  subject  of  prior  consistent  statements  was  recently  considered 
by  this  court  in  Burks  v.  State,  78  Ark.  271,  where  one  phase  of  it 
was  discussed  and  the  authorities  reviewed.  The  court  said:  "After 
all,  the  eflfect  of  proof  of  previous  consistent  statements  could  only 
be  to  corroborate  the  statement  of  the  witness  under  oath  by  his  own 
words  uttered  on  another  occasion.  It  would  add  nothing  to  his 
statement  upon  the  witness  stand  either  as  to  his  testimony  on  the 
main  issue,  or  as  to  his  denial  of  the  contradiction.  We  are  of  the 
opinion  that  the  admission  of  the  testimony  by  the  court  was  im- 
proper and  prejudicial,  and  should  not  have  been  allowed." 

This  subject  is  exhaustively  reviewed  in  2  Wigmore  on  Evidence, 
sec.  1 122  et  seq.  and  the  occasion  and  time  when  such  statements 
may  be  admitted  fully  explained.  In  section  1124  Mr.  Wigmore  says: 
"When  the  witness  has  merely  testified  on  direct  examination,  with- 
out any  impeachment,  proof  of  consistent  statements  is  unnecessarv 
and  valueless."  In  some  classes  of  crime  statements  of  a  complaint 
being  made  are  admissible,  notably  rape.  2  Wigmore,  Evidence,  1134. 
Likewise,  statements  made  by  the  owner  or  possessor  of  goods  after 
an  alleged  robbery  or  larceny  of  them  may,  under  some  circumstances, 
be  admitted.  Upon  principle,  however,  only  the  fact  of  the  complaint, 
and  not  the  details  of  the  statement,  will  be  admissible.  2  Wigmore, 
Evidence,  sec.  1142. 

Applying  the  principles  here,  it  is  plain  to  be  seen  that  the  prior 
consistent  statements  were  inadmissible ;  and,  as  their  tendency  was 
naturally  to  reinforce  the  testimony  of  the  witness  prior  to  an  attack 
upon  it,  by  incompetent  testimony,  it  would  ordinarily  be  prejudicial. 
It  is  necessarily  so  in  this  case,  as  the  conviction  depends  solely  upon 
the  testimony  of  Fielder,  as  against  the  testimony  tending  to  prove 
that  the  defendant  was  at  another  place,  and  could  not  and  did  not 
commit  the  robbery. 

The  Attorney  General  seeks  to  sustain  the  admission  of  these  state- 
ments as  a  part  of  the  res  gestae.  Mr.  Wharton's  definition  and  ex- 
planation of  res  gestae,  quoted  in  Little  Rock  Traction  &  Electric  Co. 
V.  Nelson,  66  Ark.  494,  has  often  been  approved  by  this  court.  He 
says:  "Their  sole  distinguishing  feature  is  that  they  must  be  the 
automatic  and  necessary  incidents  of  the  litigated  act;  necessary  in 
this  sense,  that  they  are  part  of  the  immediate  preparations  for,  or 


Declarations  Part  of  Res  Gestae    .  419 

emanations  of,  such  act,  and  are  not  produced  by  the  calculated  policy 
of  the  actors.  They  are  the  act  talking  for  itself,  not  what  people 
say  when  talking  about  it."  In  this  case  the  evidence  is  what  the 
person  said  when  talking  about  the  act,  and  was  not  the  voluntary 
emanation  of  the  act  itself.  See  further  applications  of  the  principle 
in  WiUiams  v.  State;  66  Ark.  264 ;  Blair  v.  State,  69  Ark.  558 ;  Kansas 
City  S.  Ry.  Co.  v.  Morris,  80  Ark.  528;  Beal  &  Doyle  Dry  Goods  Co. 
V.  Carr,  85  Ark.  479. 

For  the  error  indicated  the  judgment  is  reversed  and  the  cause  re- 
manded for  new  trial. 


PARKHURST  v.  KRELLINGER. 
69  Vt.  375.     (1897) 

Start,  J.  This  action  is  brought  to  recover  for  boarding  and  nurs- 
ing Nellie  Krellinger,  an  unmarried  daughter  of  the  defendant.  It 
appeared  that  Nellie  had  been  ill  for  some  weeks  before  going  to  the 
plaintiff's  house,  during  which  time  she  had  been  at  the  home  of  her 
father;  that,  for  some  time  previous  to  her  illness,  but  for  how  long 
a  time  did  not  appear,  Nellie  had  been  away  at  work,  and,  while  so 
away,  was  taken  sick  and  returned  to  her  father's  house ;  that,  during 
her  illness,  she  had  no  means  for  her  support  and  was  unable  to  sup- 
port herself  by  work;  and  that  her  father  was  possessed  of  sufficient 
means  to  provide  for  her. 

The  defendant  claimed  that  his  daughter  was  over  eighteen  years 
of  age,  and,  upon  this  issue,  was  allowed  to  show  that  she  had  a 
birthday  party,  on  which  occasion  there  was  a  birthday  cake  with 
figures  thereon  indicating  her  age.  The  party  was  before  the  contro- 
versy arose  and  at  a  time  when  the  defendant  could  have  no  motive 
in  representing  the  age  of  his  daughter  to  be  different  from  what 
it  was  in  fact;  and  we  think  the  evidence  must  be  regarded  as  in  the 
nature  of  an  act  of  the  defendant  that  rendered  his  claim  more  prob- 
able, and  was  admissible. 

Judgment  reversed  on  another  ground. 


420  Casks  on  Evidence 

NORTHERN  PACIFIC  R.  R..CO.  v.  URLIN. 
J38  U.  S.  271.    (i8p4) 

This  was  an  action  brought  by  Alfred  J.  Urlin,  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Montana,  against  the  North- 
ern Pacific  Railroad  Company,  to  recover  for  personal  injuries  re- 
ceived by  him  when  traveling  as  a  passenger  in  one  of  its  trains. 

The  car  in  which  the  plaintiff  was  riding  became  derailed,  and  was 
thrown  down  a  bank  and  overturned.  The  complaint  charged  that 
the  accident  was  due  to  "the  defective,  decayed  and  rotten  condition 
of  the  crossrties"  in  the  road,  and  that  the  plaintiff  received  "severe 
and  dangerous  wounds  and  internal  injuries." 

The  case  proceeded  to  trial  before  the  court  and  a  jury,  and  resulted 
in  a  verdict  for  the  plaintiff  in  the  sum  of  $7500,  and  the  jury  also 
returned  certain  special  findings  which  had  been  submitted  to  them 
at  the  request  of  the  defendant.  Judgment  was  entered  upon  said 
verdict  and  special  findings.  During  the  trial  several  exceptions  were 
taken  by  the  defendant,  which  were  allowed  and  signed  by  the  judge, 
and  which  are  brought  for  review  to  this  court  by  a  writ  of  error. 

Mr.  Justice  Shiras,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  third  assignment  of  error  is  strenuously  pressed  on  our  atten- 
tion in  the  brief  of  the  plaintiff  in  error.  It  arises  out  of  the  refusal 
of  the  court  below  to  suppress  certain  portions  of  the  depositions 
of  Drs.  Mills  and  DeWitt  because  of  incompetency  and  as  merely 
hearsay. 

This  objection  is  founded  upon  the  witnesses  having  been  permitted 
to  testify  to  statements  made  by  the  defendant,  at  various  times,  to 
the  physicians  in  respect  to  his  feelings,  aches,  and  pains,  and  it  is 
contended  that  such  statements  were  made  too  long  after  the  occur- 
rence of  the  injury  to  be  part  of  the  res  gestae,  but  were  merely  nar- 
rations of  past  incidents;  and  it  is  further  urged  that,  whatever  rea- 
son there  may  have  formerly  been  when  a  party  could  not  himself 
testify  to  his  sensations,  for  liberality  in  admitting  such  statements, 
now  that  he  is  a  competent  witness,  such  reason  no  longer  operates. 

An  inspection  of  the  depositions  shows  that  the  statements  objected 
to  were  mainly  utterances  and  exclamations  of  the  defendant  when 
undergoing  physical  examinations  by  the  medical  witnesses.  As  one 
of  the  principal  questions  in  the  case  was  whether  the  injuries  of  the 
defendant  were  of  a  permanent  or  of  a  temporary  character,  it  was 


DECI.ARATIONS  Part  of  Res  Gkstae  421 

certainly  competent  to  prove  that,  during  the  two  years  which  had 
elapsed  between  the  happening  of  the  accident  and  the  trial,  there 
were  several  medical  examinations  into  the  condition  of  the  plaintiff. 
Every  one  knows  that  when  injuries  are  internal  and  not  obvious  to 
visual  inspection,  the  surgeon  has  to  largely  depend  on  the  responses 
and  exclamations  of  the  patient  when  subjected  to  examination. 

"Whenever  the  bodily  or  mental  feelings  of  an  individual  are  ma- 
terial to  be  proved,  the  usual  expressions  of  such  feelings,  made  at 
the  time  in  question,  are  also  original  evidence.  If  they  were  the 
natural  language  of  the  affection  whether  of  body  or  mind,  they  fur- 
nish satisfactory  evidence,  and  often  the  only  proof  of  its  existence, 
and  whether  they  were  real  or  feigned  is  for  the  jury  to  determine. 
So,  also,  the  representations  by  a  sick  person  of  the  nature,  symptoms 
and  effects  of  the  malady  under  which  he  is  suffering  at  the  time  are 
original  evidence.  If  made  to  a  medical  attendant  tliey  are  of  greater 
weight  as  evidence,  but  if  made  to  any  other  person  they  are  not, 
on  that  account,  rejected."     i  Greenl.  Ev.  14th  ed.  sec.  102. 

In  Fleming  v.  Springfield,  154  Mass.  520,  522,  where  such  a  ques- 
tion arose,  it  was  said : 

"The  testimony  of  Dr.  Rice  was  properly  admitted.  The  statement 
made  by  the  plaintiff  purported  to  be  a  description  of  his  symptoms 
at  the  time  it  was  made,  and  not  a  narrative  of  something  that  was 
past;  and  it  may  be  fairly  inferred  that  it  was  made  for  the  purpose 
of  medical  advice  and  treatment.  At  any  rate,  although  it  was  only  a 
day  or  two  before,  or  possibly  during  the  trial,  it  does  not  appear  that 
such  is  not  the  case." 

The  declarations  of  a  party  himself,  to  whomsoever  made  are  com- 
petent evidence,  when  confined  strictly  to  such  complaints,  expres- 
sions, and  exclamations  as  furnish  evidence  of  a  present  existing 
pain  or  malady,  to  prove  his  condition,  ills,  pains  and  symptoms, 
whether  arising  from  sickness,  or  from  an  injury  by  accident  or  vio- 
lence. If  made  to  a  medical  attendant  they  are  of  more  weight  than 
if  made  to  another  person. 

Affirmed. 


422  Cases  on  Evidence 

SOTO  V.  TERRITORY. 
12  Ariz.  s6.     (1908) 

S1.0AN,  J.  The  appellant,  Soto,  was  charged  and  convicted  in  the 
court  below  with  having  committed  the  infamous  crime  against  nature 
with  one  Amilio  Sherman,  a  Mexican  boy  of  about  the  age  of  four 
years.  Upon  the  trial  the  mother  of  the  boy  testified  that  about  11 
o'clock  on  the  morning  of  the  2nd  of  March,  1907,  she  sent  her  son 
to  a  store,  situated  about  the  distance  of  six  blocks  from  her  home, 
to  purchase  some  red  chili  and  candy;  and  that  at  about  half-past  12 
o'clock  her  son  returned  crying  and  very  pale ;  that  she  examined  him 
and  found  him  lacerated  and  bleeding.  She  was  then  asked  by  the 
district  attorney  to  state  what,  if  anything,  was  said  by  the  boy 
then  as  to  the  cause  of  his  injuries.  The  question  was  objected  to  by 
counsel  for  the  defendant,  but  the  objection  was  overruled,  and  the 
witness  was  then  permitted  to  state  in  full  what  was  said  by  the  boy 
as  to  what  had  transpired  between  himself  and  the  defendant.  Other 
witnesses  testified  to  having  seen  the  boy  soon  after  his  return  to 
his  mother's  house,  and  that  he  was  then  in  a  state  of  excitement 
and  was  crying  and  complaining  of  his  injuries.  These  witnesses 
described  the  injuries  as  did  the  mother.  The  admission  of  the  tes- 
timony of  the  latter  as  to  the  statement  of  her  son  as  to  the  details 
of  the  alleged  assault  is  complained  of  by  counsel  for  appellant  and 
is  the  only  question  raised  on  this  appeal. 

Upon  no  branch  of  the  law  of  evidence  is  there  such  confusion 
and  seeming  conflict  as  in  the  application  of  the  rule  admitting  state- 
ments as  a  part  of  the  res  gestae.  As  expressed  by  Chief  Justice 
Blakely  of  Georgia :  "The  difficulty  of  formulating  a  description  of 
the  res  gestae  which  will  serve  for  all  cases  seems  insurmountable. 
To  make  the  attempt  is  something  like  trying  to  execute  a  portrait 
which  shall  enable  the  possessor  to  recognize  every  member  of  a 
numerous  family." 

In  its  application  to  statements  made  by  injured  persons  after  their 
injuries  as  to  the  circumstances  of  such  injuries  Mr.  Wigmore,  in 
his  work  on  Evidence  has  well  pointed  out  that  "the  verbal  act"  or 
res  gestae  rule  is  inadequate  to  account  for  their  admission.  Their 
admission  is  rather  based  upon  the  theory  that  human  experience 
shows  that  under  circumstances  of  physical  shock  or  great  nervous 
excitement  a  person  will  give  utterance  to  the  truth  as  to  their  knowl- 
edge of  the  event  which  produced  such  shock  or  nervous  excitement. 


DECI.ARATIONS   PaRT   OF  RES   GESTAE  423 

and  their  experience  in  relation  thereto.  As  the  learned  author  points 
out,  the  verbal  act  rule  is  distinct  from  this,  which  may  be  denom- 
inated the  rule  of  "spontaneous  utterance,"  in  that  the  former  is 
based  upon  the  theory  that  the  utterance  is  part  of  the  entire  act  and 
is  admitted  without  reference  to  its  trustworthiness,  while  the  latter 
like  that  of  a  dying  declaration,  rests  entirely  upon  the  assumed 
truthfulness  of  the  utterance.  Logic  requires  that  the  former  shall 
be  strictly  contemporaneous  with  the  main  event,  or  follow  it  so 
closely  as  to  constitute  both  one  entire  transaction.  Greater  flexibility 
as  to  time  is  permitted  in  the  application  of  the  latter  rule,  but  to 
render  such  statements  or  declarations  admissible  the  circumstances 
must  be  such  as  naturally  to  produce  such  shock  or  nervous  excite- 
ment as  to  render  the  utterance  spontaneous  and  unreflective ;  and  it 
must  have  been  uttered  while  such  shock  or  nervous  excitement  may 
be  supposed  still  to  dominate  and  control  and  keep  in  abeyance  the 
reflective  powers  of  the  person  who  has  made  it.  It  follows  that  such 
utterance  or  statement  under  this  rule  need  not  be  shown  to  be 
contemporaneous  with  the  event  which  called  it  forth,  provided  there 
has  not  been  time  for  the  exciting  cause  to  lose  its  eflfect.  As  to  the 
limit  of  time  within  which  the  exciting  cause  should  be  held  to  have 
been  so  dissipated  as  to  render  such  statement  inadmissible,  no  rule 
may  be  formulated.  Each  case  must  depend  upon  its  own  facts  and 
must  be  left  to  the  sound  discretion  of  the  trial  court. 

We  do  not  mean  to  imply  that  the  time  when  such  utterance  is 
made  with  reference  to  the  main  event  should  not  be  an  important 
or  even  a  controlling  factor  in  the  exercise  of  the  court's  discretion 
in  the  admission  of  such  testimony.  Where  the  victim  of  an  assault 
is  of  an  age  to  render  it  improbable  that  his  utterance  was  deliberate 
and  its  effect  premeditated  in  any  degree,  we  do  not  think  it  is  re- 
quired that  such  utterance  to  be  admissible  as  evidence  shall  have 
been  so  nearly  contemporaneous  with  the  event,  which  gave  rise  to  it 
as  in  the  case  of  an  older  person,  whose  reflective  powers  are  not 
presumed  to  be  so  easily  affected  or  kept  in  abeyance.  Testimony  of 
declarations  or  statements  made  by  a  person  under  the  rule  of  spon- 
taneous utterance  is  admitted  in  evidence,  notwithstanding  he  be  not 
called  as  a  witness  and  testify  at  the  trial,  and  his  testimony  is  ad- 
missible, notwithstanding  he  be  incompetent  as  a  witness  because  of 
youth.  In  a  case  similar  to  this  the  court  of  criminal  appeals  of 
Texas  held  that  the  statements  of  a  child,  made  after  an  alleged 
assault  had  been  committed  upon  her  were  admissible  in  evidence,  not- 
withstanding the  fact  that  she  was  incompetent  to  testify  because  of 


424  Cases  on  Evide;nck 

her  age.  Croomes  v.  State,  40  Tex,  Cr.  672,  51  S.  W.  924,  53  S.  W. 
882;  Kenney  v.  State  (4  Tex.  Cr.  App.),  79  S.  W.  818,  65  L.  R.  A. 
316;  State  V.  Andrews,  130  Iowa  609,  105  N.  W.  215. 

Applying  the  doctrine  to  the  case  at  bar,  we  cannot  say  that  the  trial 
court  erred  in  admitting  the  testimony  of  the  mother  of  the  boy  as 
to  his  statements  of  what  had  taken  place  1)etween  him  and  the  de- 
fendant. When  we  consider  his  youth,  his  physical  condition,  the 
degree  of  excitement  and  nervousness  he  was  under  at  the  time  of 
his  return  to  his  home,  and  when  his  statements  were  made,  and 
all  the  surrounding  circumstances  shown  in  evidence,  we  think  it  was 
within  the  sound  discretion  of  the  trial  court  to  have  permitted  this 
testimony  to  go  to  the  jury. 

The  ju<^gment  is  affirmed. 

Kent,  C.  J.  and  Campbell  and  Nave,  JJ.,  concur. 


PEOPLE  V.  GAGE. 
62  Mich.  271.     (1886) 


Champlin,  J.  The  respondent  was  convicted  of  an  assault  with 
intent  to  commit  rape  upon  a  female  child  of  the  age  of  ten  years  or 
more. 

The  evidence  showed  that  the  little  girl  was  ten  years  and  four 
months  old  at  the  time  the  offense  was  committed. 

It  appeared  from  the  testimony  of  the  girl  that  the  respondent,  at 
the  time  he  committed  the  alleged  offense,  told  the  girl  that  she  must 
not  tell  her  father  about  it;  that  if  she  did  he  would  give  her  an  awful 
whipping  and  that  she  did  not  tell  her  parents  of  it  for  fear  her  father 
would  whip  her.  It  appears,  also,  that  a  few  days  after  the  transac- 
tion she  told  of  it  to  a  cousin,  and  that  her  parents  only  found  it  out 
in  August,  a  short  time  before  respondent  was  arrested,  and  thereupon 
her  mother  questioned  her  in  regard  to  it;  and  this  conversation  was 
received  in  evidence,  against  the  respondent's  objection,  in  which  the 
mother  was  permitted  to  detail  all  the  circumstances  of  the  transaction 
constituting  the  alleged  offense. 

Prof  Greenleaf  says: 

"Though  the  prosecutrix  may  be  asked  whether  she  made  complaint 
of  the  injury,  and  when  and  to  whom,  and  the  person  to  whom 
she  complained  is  usually  called  to  prove  that  fact,  yet  the  particular 


Deci^arations  Part  or  Res  Gestae  425 

facts  which  she  stated  are  not  admissible  in  evidence  except  when 
elicited  on  cross-examination,  or  by  way  of  confirming  her  testimony 
after  it  has  been  impeached. 

"On  the  direct  examination  the  practice  has  been  merely  to  ask  her 
whether  she  made  complaint  that  such  an  outrage  had  been  perpe- 
trated upon  her,  and  to  receive  only  a  simple  'yes'  or  'no'.  Indeed, 
the  complaint  constitutes  no  part  of  the  res  gestae, — it  is  only  a  fact 
corroborative  of  the  testimony  of  the  complainant;  and  where  she  is 
not  a  witness  in  the  case,  it  is  wholly  inadmissible."  3  Greenl.  Ev. 
sec.  213. 

The  rule  stated  above  is  supported  by  abundant  authority :  i  Phil. 
Ev.  233;  Baccio  V.  People,  41  N.  Y.  265;  i  Russ.  Cr.  689;  Roscoe, 
Crim.  Ev.  26,  note  i ;  Rex  v.  Clarke,  2  Starkie,  241 ;  Reg.  v.  Walker, 
2  Moody  &  R.  212;  Reg.  v.  Meyson,  9  Car.  &  P.  418;  People  v.  Mc- 
Gee,  I  Denio  19 ;  Phillips  v.  State,  9  Humph.  246 ;  Peflferling  v.  State, 
44  Tex.  486;  People  v.  Hulse,  3  Hill  316. 

But  we  think  the  rule  not  an  inflexible  one,  and  ought  to  yield  where 
the  particular  circumstances  of  the  case  make  it  inapplicable;  as 
where  the  party  outraged  is  of  tender  years  and  her  silence  is  the 
direct  consequence  of  fears  of  chastisement  induced  by  threats  of 
the  perpetrator  of  the  wrong.  The  reason  of  the  rule  admitting  the 
fact  that  complaint  was  made,  and  excluding  the  complaint  itself,  is 
founded,  aside  from  its  being  hearsay,  by  those  courts  which  do  not 
treat  it  as  part  of  the  res  gestae,  upon  the  danger  of  allowing  a  de- 
signing female  to  corroborate  her  testimony  by  statements  made  by 
herself  to  third  persons,  and  the  difficulty  of  disproving  the  principal 
fact  by  the  accused.  But  some  courts  hold  that  the  evidence  that 
complaint  was  made  is  not  received  merely  as  corroborative  of  the 
statement  of  the  prosecutrix,  but  as  part  of  res  gestae,  where  they  are 
made  immediately  after  the  outrage  complained  of,  and  this  is  the 
holding  of  our  own  court:  Lambert  v.  People,  29  Mich.  71 :  People 
V.  Brown,  53  id.  531. 

If  the  complaint  made  immediately  after  the  occurrence  constitutes 
part  of  the  res  gestae,  it  would  seem  that  not  only  the  fact  that  com- 
plaint was  made,  but  the  complaint  made,  should  be  admitted.  Be- 
sides, the  reason  upon  which  the  rule  of  exclusion  is  based,  namely, 
the  difficulty  of  disproving  the  accusation,  no  longer  exists  in  this 
State,  where  the  accused  is  permitted  to  testify  in  his  own  behalf. 
We  think  in  this  case  there  was  no  error  in  admitting  the  testimony 
of  the  mother  of  the  child. 


426  Cases-  on  Evidence 

The  judgment  is  affirmed. 
The  other  Justices  concurred. 


HARRIMAN  et  al.  v.  STOWE. 
57  Mo.  93.     (18/4) 

Wagner,  J.  The  plaintiff,  a  married  woman,  in  conjunction  with 
her  husband  brought  this  action  for  damages  against  the  defendant 
for  injuries  sustained  by  her  in  falling  through  a  hatchway  which, 
it  was  alleged,  was  constructed  by  defendant,  and  by  him  negligently, 
carelessly  and  wrongfully  left  insecure  and  unprotected. 

The  answer  denied  the  allegations  of  negligence,  and  as  a  further 
defense  set  up  that  the  house  where  the  hatchway  was  built  was  the 
property  of  defendant's  wife,  and  that  defendant  in  doing  the  work 
was  acting  as  her  agent.  There  was  a  replication  as  to  negligence 
and  carelessness,  but  it  was  admitted  that  the  property  belonged  to 
defendant's  wife. 

The  verdict  and  judgment  were  for  plaintiff,  and  defendant  ap- 
pealed. On  the  trial  E.  W.  Shauffler  was  sworn  as  a  witness  for  the 
plaintiff  and  stated  that  he  was  a  practicing  physician,  and  as  such 
attended  on  the  plaintiff.  The  defendant  objected  to  his  giving  any 
testimony  because  under  the  statute  he  was  incompetent.  This  objec- 
tion was  overruled. 

The  witness  was  then  asked  to  state  in  what  condition  he  found 
the  plaintiff  when  he  was  called  in.  This  question  was  objected  to 
by  the  defendant  for  the  same  reason  as  above  given.  The  court 
sustained  the  objection,  but  permitted  the  witness  to  answer  under 
the  following  restriction :  "In  answering  the  question  you  will  not 
reveal  any  information  you  may  have  received  from  the  plaintiff 
while  attending  her  in  your  professional  character,  which  informa- 
tion was  necessary  to  enable  you  to  prescribe  for  her  as  a  patient 
in  your  capacity  as  physician  or  surgeon."  The  witness  then  gave 
testimony  tending  to  show  that  plaintiff  was  injured  about  noon,  what 
her  injuries  were,  that  he  was  her  physician  before  that  time  and  that 
he  was  called  to  see  her  between  one  and  four  o'clock  of  that  day. 
At  ^Jie  ?ame  time  she  stated  to  him  that  the  trap-door  in  the  kitchen 
had  been  left  in  an  insecure  condition,  and  that  she  stepped  on  it  and 
fell  through. 


Deci^arations  Part  of  Res  Gestae;  427 

The  general  rule  is,  that  evidence  in  order  to  become  a  part  of  the 
res  gestae  should  consist  of  declarations  made  contemporaneously, 
or  nearly  so,  with  the  main  event  by  which  it  is  alleged  that  the  prin- 
cipal transaction  occurred.     Browness  v.  Pacific  R.  R.  Go.,  47  Mo. 

239- 

But  in  Ins.  Go.  v.  Mosely  (8  Wall.  397)  where  the  question  was 
carefully  and  ably  considered,  it  was  declared  that  though  generally 
the  declarations  must  be  contemporaneous  with  the  event,  yet  where 
there  are  any  connecting  circumstances  they  may,  even  when  made 
some  time  afterward,  form  a  part  of  the  whole  res  gestae. 

In  the  present  case  the  witness  came  within  a  short  time  after  the 
plaintiff  received  the  injuries.  He  found  her  suffering,  and  she  told 
him  how  she  was  hurt,  namely,  by  falling  through  the  trap  door. 

The  accident  and  the  declarations  formed  connecting  circumstances, 
and  in  the  ordinary  affairs  of  life  no  one  would  doubt  the  truth  of 
these  declarations  or  hesitate  to  credit  them  as  evidence.  I  can  per- 
ceive no  valid  objection  to  their  admissibility. 

Judgment  affirmed. 


COMMONWEALTH  v.  M'PIKE. 
57  Mass.  181.     (184Q) 

The  defendant  was  indicted  in  the  Municipal  Court  of  the  city  of 
Boston  and  there  tried  before  Hopkins,  J.,  at  the  last  November  term, 
for  the  offense  of  manslaughter.  The  indictment  alleged,  that  the 
defendant,  on  the  4th  of  July,  1848,  and  in  the  night  time  of  that 
day,  feloniously  assaulted  Elizabeth  M'Pike  the  wife  of  the  defendant, 
and  stabbed  her  near  the  right  hip  joint,  with  a  dangerous  weapon, 
to  wit,  a  knife,  inflicting  therewith  a  mortal  wound,  of  which  the  party 
injured  died  on  the  7th  of  October,  1848. 

At  the  trial,  the  attorney  for  the  commonwealth  introduced  evi- 
dence, that  the  deceased,  between  twelve  and  one  o'clock  on  the  morn- 
ing of  the  5th  of  July  ran  from  her  room,  where  her  husband  the 
defendant  was  to  the  room  occupied  by  the  witness  in  the  same  house, 
in  the  story  above  that  of  the  defendant,  and  there  knocked  at  the 
door,  crying  murder.  On  being  let  in,  the  deceased  wanted  the  occu- 
pant to  call  a  doctor  and  a  priest,  saying  that  she  was  killed.  The 
witness  saw  that  the  deceased  was  wounded,  and  that  blood  was  run- 


428  Cases  on  Evidence 

ning  down  upon  the  floor,  and  started  immediately  for  a  physician. 
On  opening  her  door  to  go  out,  she  met  the  defendant  at  the  door, 
and  pushed  him  aside  and  went  out. 

The  attorney  for  the  Commonwealth  called  Benjamin  D.  Shaw  as 
a  witness,  who  testified,  that,  about  the  time  mentioned  by  the  pre- 
ceding witness,  he  heard  the  voice  of  a  woman  crying  murder,  as  she 
was  going  up  stairs.  He  got  up  and  going  towards  the  room,  met 
the  last  witness  coming  out,  who  told  him  not  to  go  up,  for  the 
defendant  would  kill  her,  and  he  then  saw  the  defendant  coming 
out  of  the  room.  The  witness  then  went  for  a  watchman,  and,  com- 
ing back  went  immediately  up  to  the  room  where  the  deceased  was, 
and  there  found  her  lying  on  the  floor  bleeding  profusely.  She  asked 
the  witness  for  some  water,  and  to  go  for  a  physician.  She  said  that 
John  (meaning  the  defendant)  had  stabbed  her  and  told  the  witness 
what  she  wanted  done,  if  she  died.  The  defendant  objected  to  the 
admission  of  the  declaration  of  the  wife,  that  the  defendant  had 
stabbed  her;  but  the  court  admitted  the  testimony. 

Dewey,  J.  The  admission  in  evidence  of  the  statement  of  the 
party  injured,  as  to  the  cause  and  manner  of  the  injury  which  ter- 
minated in  her  death  may  be  sustained  upon  the  ground,  that  the 
testimony  was  of  the  nature  of  the  res  gestae.  The  witness  describes 
the  situation  in  which  he  found  the  party,  her  appearance  and  her 
request  for  assistance,  and,  in  connection  therewith  her  declaration 
of  the  cause  of  the  injury.  The  period  of  time,  at  which  these  acts 
and  statements  took  place,  was  so  recent  after  the  receiving  of  the 
injury,  as  to  justify  the  admission  of  the  evidence  as  a  part  of  the 
res  gestae.  In  the  admission  of  testimony  of  this  character,  much 
must  be  left  to  the  exercise  of  the  sound  discretion  of  the  presiding 
judge. 

Exceptions  overruled. 


STATE  V.  LASECI. 
go  Ohio  St.  10.    (191 4) 


On  the  evening  of  January  i,  1913,  Mike  Zacharias,  in  company 
with  his  little  son,  aged  about  four  years,  and  certain  other  men, 
visited  the  saloon  of  his  brother,  William  Zacharias,  in  Berea  street, 
Berea. 


Declarations  Part  of  Res  Gestae  429 

Across  the  street  from  William  Zacharias'  saloon,  another  saloon 
was  kept  by  a  man  by  the  name  of  Frank  Niec.  Between  ten  and 
eleven  o'clock  in  the  evening,  the  defendant,  John  Lasecki,  accom- 
panied by  John  Wisniewski  and  Ignatz  A'Taslinski,  left  Nice's  place. 
Just  before  they  left,  Niec  passed  two  clubs  over  the  bar  to  them. 
Some  few  minutes  later  they  returned  to  Niec's  place,  without  clubs, 
and  went  into  a  side  room.  At  about  this  time  Mike  Zacharias  was 
killed  in  the  street  not  far  distant  from  Niec's  place. 

Testimony  was  also  offered  to  show  that  several  others  left  Zach- 
arias' saloon  with  the  deceased  at  about  this  time,  including  the  de- 
ceased's little  son.  The  party  left  the  saloon  for  the  purpose  of  taking 
a  car  to  Cleveland.  As  they  walked  towards  the  car  Mike  and  his 
son  were  the  last  of  the  party.  An  altercation  was  heard  between 
Mike  and  some  other  men  not  of  his  party.  The  sound  of  two  or 
three  blows,  as  if  by  a  club,  was  heard  by  the  men  ahead  of  him. 
One  or  more  of  these  men  ran  back  and  found  the  deceased  lying 
on  the  ground  and  also  saw  some  men  running  away.  As  they  came  up 
to  where  Mike  was  lying,  the  boy,  in  a  nervous  and  much  frightened 
state  of  mind,  said,  "The  bums  killed  pa  with  a  broomstick."  The 
boy  was  then  about  twenty-five  feet  away  from  his  father  and  out 
of  hearing  of  those  who  were  fleeing  from  the  scene  of  the  attack. 

The  above  statement  of  facts  is  taken  verbatim  from  the  opinion 
of  the  Court  of  Appeals,  and  it  is  on  this  exclamation  of  the  boy 
that  the  Court  of  Appeals  reversed  the  judgment  of  conviction  ob- 
tained in  the  Common  Pleas  Court,  and  which  judgment  of  reversal 
the  State  asks  to  have  reversed  in  this  court. 

WanamakER,  J.  Was  the  exclamation  of  the  boy  competent  tes- 
timony ? 

Both  sides  agree  that  this  is  the  only  question  in  the  case,  and 
that  the  testimony  is  competent  only  upon  the  theory  that  it  is  a  part 
of  the  res  gestae  of  the  case. 

The  record  discloses  that  the  exclamation  arose  in  the  following 
manner : 

"Q.  You  may  tell  if  anything  unusual  happened  there  and  what 
it  was,  anything  out  of  the  ordinary?  A.  We  was  walking  about 
one  hundred  and  fifty  feet  from  the  car,  maybe  two  hundred,  I 
couldn't  tell  you,  and  I  heard  the  hitting  twice,  like  that  (indicating), 
and  think  there  was  an  argument  started  and  the  boy  said  that  the 
bums  had  killed  his  papa  with  a  broomstick.  Objection.  Objection 
overruled.    Exception." 


430  Cases  on  Evidenck 

It  will  be  noted  that  there  was  no  objection  to  the  question,  and 
that  the  objection  is  to  the  whole  answer. 

Now,  manifestly,  the  major  part  of  the  answer  is  competent  and 
responsive  to  the  question.  If  the  exclamation  of  the  boy  be  incom- 
petent, the  objection  of  counsel  should  have  been  addressed  to  that 
exclamation,  asking  an  order  from  the  court  to  exclude  it  from  the 
consideration  of  the  jury.  But  that  was  not  done.  Where  objection 
is  made  to  the  entire  answer,  part  of  which  is  competent  and  part 
incompetent,  there  is  but  one  thing  for  the  trial  judge  to  do,  that 
is  to  overrule  the  objection,  and  in  this  case  there  was  no  error  on 
the  part  of  the  trial  court 

But  we  are  not  disposed  to  decide  a  case  of  this  importance  upon 
the  mere  failure  of  counsel  to  properly  save  his  rights,  and  shall 
consider  the  case  on  its  merits,  as  if  the  objection  and  exception  had 
been  properly  made. 

Was  the  exclamation  a  part  of  the  res  gestae? 

Wharton's  definition  of  res  gestae  is  as  follows :  "Those  circum- 
stances which  are  the  undesigned  incidents  of  particular  litigated  acts, 
and  are  admissible  where  illustrative  of  such  acts.  These  incidents 
may  be  separated  from  the  act  by  lapse  of  time  more  or  less  appre- 
ciable. Their  sole  distinguishing  feature  is  that  they  should  be  neces- 
sary incidents  of  the  litigated  act — necessary  in  this  sense;  that  they 
are  part  of  the  immediate  preparations  for,  or  emanations  from,  such 
acts,  and  are  not  produced  by  the  calculated  policy  of  the  actors. 
In  other  words,  they  must  stand  in  immediate  casual  relation  to  the 
act — a  relation  hot  broken  by  individual  wariness  seeking  to  manu- 
facture evidence  for  itself.  Therefore  declarations  which  are  the 
immediate  accompaniments  of  an  act  are  admissible  as  part  of  the 
res  gestae;  remembering  that  immediateness  is  tested  by  closeness, 
not  of  time  but  by  causal  relation,  as  just  explained."  7  Words  and 
Phrases  Judicially  Defined,  6130. 

Again,  Wharton  says  res  gestae  are  the  facts  which  form  the  en- 
vironment of  a  litigated  issue. 

It  is  impossible  to  reconcile  the  multitude  of  divers  decisions  by 
courts  of  last  resort  on  the  proper  scope  and  limitations  of  the  old 
phrase  res  gestae.  Many  of  the  states  follow  reverently  and  rigidly 
the  old  English  rule,  that  before  any  exclamation  is  admissible  in 
evidence  on  the  theory  of  res  gestae,  it  must  be  contemporaneous  in 
time  with  the  principal  fact  in  litigation.  That  is,  just  as  soon  as  it 
appears  that  it  is  subsequent  in  time  to  the  principal  fact  and  merely 


Declarations  Part  of  Res  Gestae  451 

narrative  of  it,  such  exclamation  is  not  a  part  of  the  res  gestae  and 
is,  therefore,  not  admissible. 

This  old  English  rule  had  its  birth  in  a  strange  combination  of 
circumstances.  First,  the  inhumanity  and  barbarity  of  the  penalties 
provided  by  the  English  law  for  criminal  cases.  A  century  ago  two 
hundred  crimes  in  England  were  punishable  by  death.  Second,  the 
prisoner  had  no  rights  in  an  English  court  of  justice,  save  the  right 
to  be  convicted.  He  was  not  competent  as  a  ^witness  in  his  own 
behalf,  nor  indeed  were  any  members  of  his  family.  He  was  not  al- 
lowed the  privilege  of  having  his  own  counsel  address  the  jury,  and 
indeed,  in  earlier  days,  was  not  even  allowed  the  privilege  of  counsel. 
He  had  no  right  of  appeal,  and  many  other  prerogatives  now  enjoyed 
by  the  defendants  were  wholly  unknown  to  the  English  law  a  century 
or  more  ago. 

With  these  barbarous  penalties  and  this  outrageously  unjust  pro- 
cedure it  is  little  wonder  that  the  humanity  of  the  judge  as  well  as 
his  love  of  legal  casuistry  should  resort  to  a  strained  and  technical 
construction  of  the  law  to  overcome  its  barbarity. 

The  second  class  of  states  practically  ignored  the  old  English  doc- 
trine of  contemporaneous  character  of  facts  or  exclamations  and  con- 
sidered chiefly  the  causal  connection  or  logical  relation  that  the  second- 
ary facts  sustain  to  the  primary  facts  in  controversy. 

Now,  applying  the  doctrine  or  test  of  causation,  it  would  be  ex- 
pected not  infrequently  that  there  would  be  an  appreciable  interval 
between  cause  and  effect,  between  those  things  that  have  a  logical 
relation,  such  as  the  commission  of  an  act  and  an  impulsive  exclama- 
tion concerning  the  same. 

Now,  when  the  exclamation  is  the  combined  result  of  the  tragic 
circumstances  of  the  situation  making  an  awful  and  fearful  impres- 
sion upon  the  human  mind,  especially  that  of  a  child  seeing  its  own 
father  murderously  assaulted,  the  child  being  overwhelmed  with  fear 
and  grief  because  of  the  darkness  of  the  night,  the  absence  of  a  help- 
ing hand,  grief  of  parental  loss,  with  nobody  to  appeal  to,  all  these 
combined  placing  the  child  under  natural  and  extreme  excitement, 
and,  then,  after  a  few  seconds,  some  one  comes  into  his  presence  to 
help,  what  is  more  natural,  indeed  necessary,  in  such  situation  than 
just  such  an  exclamation  as  we  have  in  this  case,  "The  burns  killed 
pa  with  a  broomstick"? 

The  language  proceeds  from  impulse,  from  the  natural  and  neces- 
sary impressions  made  by  the  acts  of  the  parties  in  controversy,  so 
that  the  human  mind  in  its  helplessness  or  despair,  or  its  natural  an^^ 


432  Cases  on  Evidence 

necessary  anxiety,  acts  under  an  impulse  or  a  spontaneous  influence 
that  is  a  sort  of  echo  or  reaction  from  the  general  situation.  The 
time  limit  recognized  by  those  courts  that  fall  under  this  second  class 
which  disregards  the  strict  contemporary  character,  is  placed  at  a 
point  where  there  is  no  opportunity  given  for  fabrication  or  manu- 
facturing some  statement  or  story  according  to  one's  self-interest. 

We  feel,  however,  that  it  is  but  just  to  say  that  the  judgment  of 
the  Court  of  Appals  in  this  case  finds  abundant  warrant  in  the 
former  decisions  of  this  cOurt  in  analogous  cases. 

We  believe,  however,  that  the  demands  of  justice,  as  well  as  the 
probative  force  and  effect  of  such  exclamations  made  where  there  is 
a  maximum  probability  as  to  their  truth  and  a  minimum  possibility 
of  artifice  or  fabrication  by  reason  of  their  being  natural,  spontane- 
ous and,  sometimes,  as  in  this  case,  the  necessary  language  of  a 
child,  require  that  the  old  rule  should  be  relaxed  and  liberalized  so  as 
to  meet  the  naturalness  and  necessities  of  the  case,  as  well  as  to  put 
the  jury  and  court  in  possession  of  all  the  facts,  circumstances  and 
environment  immediately  before  and  after  the  principal  fact  in  con- 
troversy. 

The  judgment  of  the  Court  of  Appeals  is  reversed  and  the  judg- 
ment of  the  Court  of  Common  Pleas  is  affirmed,  and  the  cause  re- 
manded to  the  Court  of  Common  Pleas  for  further  proceedings  accord- 
ing to  law. 

Judgment  reversed. 

NiCHoi,s,  C.  J.,  Johnson,  Donahue,  Newman  and  W11.KIN,  JJ., 
concur. 


GRANT  V.  STATE. 
124  Ga.  757.     (1905) 


Beck,  J.  The  plaintiff  in  error  was  charged  with  the-  offense  of 
murder,  and  was  convicted  of  that  offense,  without  a  recommendation. 
He  moved  for  a  new  trial,  his  motion  embracing  several  grounds. 

Exception  was  taken  to  the  refusal  of  the  court  to  exclude  the 
following  testimony:  "Mary's  [deceased's]  child  said,  'Huss  [de- 
fendant] ,  you  have  shot  mama.' "  The  testimony  quoted  was  that  of 
Jake  Colbert,  a  witness  for  the  State,  and  it  was  objected  to  "on  tlie 
ground  that  the   solicitor-general,   in  opening  the  case  to  the  jury. 


DecIvArations  PARt  OF  Rfis  Gestae  433 

had  stated  that  Mary  Johnson's  (deceased's)  child  the  one  referred 
to  by  the  witness  Colbert,  was  too  young  to  be  a  competent  witness 
or  to  testify."  -And  movant  adds  that  this  (foregoing  statement  of 
the  solicitor-general)  "was  true,  and  allowing  Colbert  to  testify  as 
to  what  the  child  said  was  in  effect  allowing  the  child  to  testify." 
We  cannot  agree  with  counsel  that  permitting  the  witness  to  testify 
to  the  words  of  a  little  child,  too  young  to  be  brought  into  court  as 
a  witness,  was  equivalent  to  permitting  the  child  itself  to  testify.  It 
appears  from  the  evidence  that  the  witness  Colbert,  at  the  sound  of 
the  shots  which  slew  the  deceased,  ran  immediately  from  an  adjoining 
room  into  the  one  where  the  homicide  was  committed,  and  said  twice 
to  the  defendant,  "Have  you  shot  Mary?"  The  defendant  made  no 
answer,  but  the  child,  as  the  defendant  silently  left  the  room,  uttered 
the  words,  "Huss,  you  have  shot  mama."  These  words,  spoken  by 
a  little  child  immediately  after  the  shocking  occurrence,  were  clearly 
admissible  as  a  part  of  the  res  gestae.  No  declaration  could  have 
been  freer  "from  all  suspicion  of  device  or  afterthought,"  and  it  was, 
in  point  of  time,  almost  concurrent  with  the  act  to  which  it  referred. 
It  was  the  very  deed  itself  speaking  through  the  mouth  of  a  .babe. 

Judgment  affirmed.     All  the  Justices  concur,  except  Atkinson,  J., 
who  did  not  preside. 


JORDAN  V.  STATE. 
81  Ala.  20.     (1886) 


This  case  comes  up  on  appeal  to  this  court  the  second  time.  The 
appellants,  Jule  and  Handy  Jordan,  two  colored  men,  were  under 
indictment  for  the  murder  of  one  Albert  York,  also  a  colored  man. 
The  homicide  occurred  at  night  in  the  house  of  one  Jerry  Williams, 
in  the  county  of  Montgomery.  The  house  consisted  of  two  rooms 
with  a  partition  wall  between,  in  which  was  a  door  connecting  the 
two  rooms,  and,  on  the  night  of  the  difficulty,  a  party  was  being  given 
at  this  house,  and  for  the  occasion,  one  of  the  rooms  was  designated 
as  the  "party  room"  and  the  other  as  the  "dancing  room".  The  evi- 
dence on  the  part  of  the  State,  among  other  things,  tended  to  show, 
that,  on  the  night  of  the   difficulty,   defendant,  Jule  Jordan,  being 


434  Cases  on  Evidence 

at  the  party,  attempted  to  light  a  cigar,  and,  in  doing  so,  put  out  both 
Hghts  in  the  "party  room,"  leaving  the  room  dark,  and,  thereupon, 
one  Sam  Williams  caught  hold  of  one  Mason  Taylor,  and  jokingly 
said  that  he  (Taylor)  was  the  only  one  present  who  would  steal 
anything;  that  Taylor  became  angry  and  Jerry  Williams  and  the  de- 
ceased, Albert  York,  took  Taylor  out  of  the  room;  that  one  Raoul, 
whose  wife  was  giving  the  party,  came  outside  and  began  to  quarrel 
with  Taylor  about  taking  people  from  the  party;  and  defendant,  Jule 
Jordan,  came  up  and  drawing  a  pistol,  said,  "I  will  put  a  light  hole 
through  any  one  who  strikes  Mason  Taylor."  Whereupon  Raoul, 
having  a  knife  in  his  hand,  said,  "Do  you  mean  me?"  and  Jule  Jor- 
dan, pointing  his  pistol,  at  Raoul,  replied,  "D — n  you,  I'll  shoot  you 
if  you  move."  Then  Jerry  Williams  and  the  deceased  quieted  this 
difficulty,  and,  as  they  were  returning  to  the  house,  deceased  took 
Jule  Jordan's  pistol  from  him  and  gave  it  to  one  Warren  Beasley 
and  subsequently,  at  request  of  deceased,  said  Beasley  returned  the 
pistol  to  Jule  Jordan.  Shortly  afterwards,  Jule  Jordan  came  into  the 
party  room  with  a  stick  in  his  hand  and  Jerry  Williams  and  deceased 
took  the  stick  from  him,  and  while  so  doing,  defendant.  Handy  Jor- 
dan came  up  and  said,  'Turn  Jule  loose,  or  I  will  cut  you  up."  There- 
upon, Jerry  Williams  told  Handy  they  were  not  hurting  Jule,  and 
no  more  was  then  said.  All  this  occurred  about  a  half  hour  before 
the  killing. 

The  defendants  separately  moved  the  exclusion  of  all  the  testimony 
in  reference  to  the  difficulty  with  Mason  Taylor;  which  motions  the 
court  refused,  and  the  defendants  separately  excepted.  The  de- 
fendants then  moved  the  exclusion  of  all  the  testimony  preceding  the 
remark  of  Jule  Jordan,  about  "putting  a  light  hole,"  &c.;  which 
motion  was  overruled  and  they  separately  excepted. 

Defendants  next  moved  the  exclusion  of  all  the  testimony  after 
the  said  remark  of  Jule  Jordan;  which  the  court  refused,  and  de- 
fendants separately  excepted. 

They  then  moved  the  exclusion  of  that  portion  of  the  testimony 
in  reference  to  taking  the  stick  from  Jule  Jordan  and  what  Handy 
said  about  cutting  up  some  one;  the  court  overruled  the  motion,  and 
defendants  separately  excepted. 

Ceopton,  J.  In  respect  to  the  relevancy  of  evidence,  the  general 
rule  is,  that  it  must  be  confined  to  the  points  in  issue,  and  no  circum- 
stance is  admissible,  which  does  not  tend  to  establish  a  fact  material 
to  the  prosecution  or  defense,  or  from  which  no  presumption  or  in- 
ference can  be  reasonably  drawn  in  reference  to  a  material  fact  or 


Deci^arations  Part  of  Res  Gestae  435 

inquiry  involved  in  the  issue.  It  is  often  difficult  to  determine  when 
a  fact  or  circumstance  is  too  remote  to  aid  the  jury  in  arriving  at 
a  conclusion  on  the  issues  to  be  tried.  It  may  be  said  generally, 
that  all  parts  of  one  continuous  transaction,  though  not  shown  to 
have  any  immediate  connection  with  the  offense — the  culmination  of 
all  the  circumstances — and  facts,  proximate  to  the  consummation  of 
the  crime,  which  tend  to  shed  light  on  the  main  inquiry,  are  admis- 
sible. The  occurrences  in  which  the  deceased,  Jule  Jordan  and 
Mason  Taylor,  were  involved  at  the  place  of  the  homicide  and  dur- 
ing the  same  evening,  may  be  regarded  as  constituting  a  continuous 
transaction,  though  brief  intervals  of  time  may  have  intervened;  and 
the  declaration  of  Jordan,  that  he  would  put  a  light  hole  through  any 
one  who  struck  Mason  Taylor,  tends  to  illustrate  his  motive  and 
purpose  in  addressing  deceased,  when  he  afterwards  struck  Taylor. 
Armour  v.  The  State,  63  Ala.  173;  Mattison  v.  The  State,  55  Ala.  224. 
The  evidence  being  admissible  against  one  of  the  defendants,  could 
not  be  excluded  on  the  objection  of  the  other,  though  inadmissible 
against  him.  He  should  relieve  himself  from  its  influence  by  a  charge 
limiting  its  operation. 

Reversed  and  remanded  on  other  grounds. 


LANDER  V.  THE  PEOPLE. 
104  III.  248.     (1882) 

MuLKEY,  J.  At  the  December  term,  1881,  of  the  Macon  County 
Circuit  Court,  George  Lander,  plaintiff  in  error,  was  tried  and  con- 
victed of  the  crime  of  rape  upon  the  person  of  Mary  Sturgis  and 
was  duly  sentenced  to  the  penitentiary  for  a  period  of  twenty-five 
years,  in  pursuance  of  the  verdict  of  the  jury,  and  the  accused 
brings  the  case  here  for  review,  and  asks  for  a  reversal  on  several 
grounds,  but  chiefly  because  the  evidence  does  not,  as  is  alleged, 
sustain  the  conviction. 

The  real  and  vital  question  in  the  case,  is  as  is  conceded  by  counsel 
for  plaintiff  in  error,  does  the  evidence  sustain  the  conviction. 

Hattie  Moore  testifies :  "I  was  with  Minnie  Blentz  and  saw  Mrs. 
Sturgis  lying  at  the  side  of  the  railroad  track.  It  was  between  four 
and  five  o'clock  in  the  afternoon,  and  about  two  miles  from  the 
depot.    I  saw  a  man  on  his  knees  over  her,  and  as  he  got  up  he  made 


436  Cases  on  Evidence 

a  motion  with  his  hands  as  if  pulling  down  her  clothes.  I  was 
twenty-five  yards  away  from  them.  We  hallooed,  then  he  got  up, 
dumb  the  fence,  and  ran  into  the  woods.  Mrs.  Sturgis  sat  there 
about  five  minutes,  when  she  was  helped  home  by  Charley  Athons. 
She  seemed  in  great  pain  and  distress,  and  complained  of  being  in- 
ternally injured.  The  next  day  Minnie  Blentz  called  me  to  the 
window  of  her  house  and  pointed  to  a  man  going  west  on  the  railroad, 
and  said,  'There  goes  the  man.'  I  said,  'Yes,  there  he  goes.'  The 
man  we  saw  was  this  defendant." 

Minnie  Blentz,  spoken  of  by  the  last  witness  as  being  in  company 
with  her  at  the  time  of  the  assault,  testifies  substantially  to  the  same 
facts  sworn  to  by  Hattie  Moore.  Charley  Gouker  and  Warren  Marth- 
land  were  also  examined  on  behalf  of  the  People,  both  of  whom 
testify  they  were  near  the  place  testified  to  by  the .  prosecutrix,  and 
saw  the  assault  made  upon  her;  and  while  they  did  not  get  a  fair 
view  of  the  assailant's  face,  yet,  from  his  general  appearance,  they 
give  it  as  their  opinion  the  accused  is  the  same  person.  They  further 
testify  that  when  requested  by  the  State's  Attorney  to  pick  him  out 
from  a  number  of  other  persons  seated  on  the  'opposite  side  of  the 
bar,  they  were  able  to  do  so. 

Thus  we  see  four  persons,  besides  the  prosecutrix,  unimpeached 
and  unimpeachable,  so  far  as  the  record  shows,  who  were  eye  wit- 
nesses of  the  assault,  swearing  to  the  best  of  their  opinion,  the 
accused  is  the  perpetrator  of  the  oflFense,  and  this  is  denied  by  no 
one  other  than  the  accused  himself.  Under  these  circumstances  we 
are  of  opinion  the  jury  were  fully  warranted  in  reaching  the  conclusion 
they  did. 

As  already  appears  from  the  testimony  of  Minnie  Blentz  and 
Hattie  Moore,  the  accused,  on  the  day  following  the  assault,  was 
passing  near  the  place  where  it  happened,  when  the  former,  calling 
the  attention  of  the  latter  to  the  accused,  exclaimed,  "There  goes  the 
man,"  the  other  replying,  "Yes,  there  he  g;oes,"  and  the  court,  against 
the  objection  of  the  defendant,  permitted  the  witnesses,  in  giving 
an  account  of  the  transaction,  to  repeat  these  exclamations,  made 
at  the  time  by  the  witnesses,  and  this  is  assigned  for  error.  We  do 
not  think  the  point  well  taken.  It  is  a  well  settled  principle  in  the 
law  of  evidence,  that  whenever  it  becomes  important  to  show,  upon 
the  trial  of  a  cause,  the  occurrence  of  any  fact  or  event,  it  is  competent 
and  proper  to  also  show  any  accompanying  act,  declaration  or  ex- 
clamation which  relates  to,  or  is  explanatory  of  such  fact  or  event. 
Such  acts,  declarations  or  exclamations  are  known  to  the  law  as  res 


Declarations  Part  of  Res  Gestae  437 

gestae.  It  is  not  questioned  that  it  was  perfectly  competent  to  show 
that  the  witnesses  saw  and  readily  recognized  the  accused,  near  the 
scene  of  the  transaction,  on  the  following  day,  as  testified  to  by  them, 
and  it  must  be  admitted  the  spontaneous  exclamation,  "There  goes 
the  man,"  with  the  response,  "Yes,  there  he  goes,"  is  highly  charac- 
teristic of  the  fact  of  their  recognition.  The  true  test,  in  all  cases, 
by  which  the  admissibility  of  such  testimony  is  determined,  is,  the 
act,  declaration  or  exclamation  must  be  so  intimately  interwoven 
or  connected  with  the  principal  fact  or  event  which  it  characterizes, 
as  to  be  regarded  as  a  part  of  the  transaction  itself,  and  also  to  clearly 
negative  any  premeditation  or  purpose  to  manufacture  testimony, 
and  we  are  of  opinion  the  circumstances  of  this  case  clearly  bring  it 
within  the  rule. 

Perceiving  no  substantial  error  in  the  record,  the  judgment  will  be 

Affirmed. 


MITCHELL  V.   COLGLAZIER. 
106  Ind.  464.     (1886) 

MiTCHELi,,  J.  The  complaint  in  this  case  charges  that  David  Col- 
glazier,  with  the  intent  to  defraud  the  plaintiff,  a  judgment  creditor, 
and  without  consideration,  conveyed  certain  real  estate,  of  which 
he  was  the  owner,  to  his  wife.  The  suit  was  to  set  aside  this  con- 
veyance. 

Louisa  Colglazier,  answered  separately,  and  the  ruling  of  the  court, 
in  overruling  a  demurrer  to  her  answer,  presents  the  principal  ques- 
tion for  decision. 

The  substance  of  her  answer  was,  that  in  1872,  she  was  the  wife 
of  David  Colglazier,  and  was  possessed  of  certain  moneys  and  choses 
in  action  which  were  her  separate  property,  and  that  she  appointed 
her  husband  to  purchase  for  her  the  property  in  controversy.  It  is 
averred  that,  while  so  acting  for  her,  he  did  purchase  the  land  for 
$2,100,  and  that  he  made  the  entire  cash  payment  of  $100  with  her 
money,  and  gave  his  own  notes  for  the  deferred  payments.  He  also, 
took  the  title  to  himself  without  her  knowledge  or  consent.  As  the 
notes  for  the  deferred  payments  came  due,  she  supposing  the  title 
of  the  land  was  in  her  name,  furnished  the  money  with  which  they 
were  all  paid  off.    Upon  discovering  that  the  title  was  in  her  husband. 


438  Cases  on  Evidence 

she  demanded  that  the  property  should  be  conveyed  to  her.  In  pur- 
suance of  her  demand  and  before  the  plaintiff's  judgment  was  re- 
covered, the  conveyance,  the  making  of  which  is  the  subject  of  the 
suit,  was  made. 

The  objections  which  are  made  to  this  answer  are,  that  it  does  not 
controvert  the  charge  of  fraud,  nor  deny  that  the  deed  was  made 
without  consideration.  This  view  does  not  seem  to  be  sustained. 
Conceding  that  there  is  no  direct  denial  of  the  imputed  fraud,  and 
that  it  is  not  stated  in  terms,  that  a  valuable  consideration  was  paid 
for  the  conveyance,  the  conclusion  nevertheless  follows  irresistibly, 
that  the  deed  was  neither  fraudulent  nor  without  consideration. 

The  motion  for  a  new  trial  assigns  among  other  grounds  that  the 
court  erred  in  admitting  certain  evidence  over  the  appellant's  objec- 
tion. The  testimony  thus  admitted  was  to  the  effect  that,  on  the  day 
Mrs.  Colglazier  learned  that  her  husband  had  taken  the  title  to  the 
land  in  dispute  in  his  own  name,  she  declared  that  her  money  paid  for 
it  and  that  she  wanted  it  conveyed  to  her,  and  demanded  that  it 
should  be  done.  The  conveyance  was  made  upon  the  same  day,  in 
pursuance  of  her  demand. 

This  testimony  was  competent  as  tending  to  show  the  consideration 
upon  which  the  deed  was  made,  and  that  it  was  made  in  pursuance 
of  the  demand  of  Mrs.  Colglazier.  It  was  part  of  the  res  gestae,  and 
so  connected  with  the  execution  of  the  deed  as  to  make  it  competent 
as  part  of  the  transaction.  Doe  v.  Reagan,  5  Blackf.  217;  Kenney  v. 
Phillips,  91  Ind.  511. 

The  judgment  is  affirmed,  with  costs. 


THROCKMORTON  v.  HOLT. 

180  U.  S.  552.    (1900) 

This  was  a  proceeding  in  the  Supreme  Court  of  the  District  of 
Columbia  for  the  purpose  of  proving  an  alleged  will  of  the  late 
Joseph  Holt,  a  distinguished  lawyer  and  for  many  years  Judge  Ad- 
vocate General  of  the  United  States  Army,  who  died  at  the  age  of 
eight-seven,  in  Washington  on  Aug.  i,  1894,  after  a  residence  of  many 
years  in  that  city.  The  proceeding  resulted  in  the  rejection  of  the 
paper  on  the  ground  that  it  was  not  the  will  of  Judge  Holt  but  was 
a  forged  document,  and  judgment  refusing  probate  was  entered  upon 


Declarations  Part  of  Res  Gestae  439 

the  verdict  of  the  jury.  The  proponents  of  the  will  appealed  to  the 
Court  of  Appeals  of  the  District,  but  before  the  appeal  was  brought 
on  for  argument  Miss  Hynes,  one  of  the  legatees  named  in  the  will, 
withdrew  her  appeal.  The  judgment  of  the  Supreme  Court  upon  the 
appeal  of  the  other  proponents  was  subsequently  affirmed  by  the 
Court  of  Appeals,  and  the  proponents  of  the  paper,  excepting  Miss 
Hynes,  have  brought  the  case  here  by  writ  of  error. 

Mr.  Justice  Peckham.  The  facts  set  forth  in  the  statement  pre- 
fixed to  this  opinion  show  the  case  to  be  one  of  an  extraordinary 
nature.  There  being  no  proof  in  regard  to  the  history  or  where- 
abouts of  the  paper  before  it  was  received  by  the  register  of  wills, 
and  the  evidence  pro  and  con  as  to  its  genuineness  having  been  re- 
ceived upon  the  trial,  the  question  arises  as  to  the  admissibility  of  the 
various  declarations  of  the  deceased,  and  also  of  his  letters  to  different 
relatives  living  in  Kentucky  and  other  states,  which  it  is  claimed 
tend  to  show  the  improbability  of  the  deceased  making  such  a  dis- 
position of  his  property  as  is  made  in  the  paper  in  controversy.  The 
question  is,  in  other  words,  can  the  contestants  prove  by  unsworn  oral 
declarations  and  by  letters  of  the  deceased  facts  from  which  an  in- 
ference is  sought  to  be  drawn  that  the  disposition  of  the  property 
as  made  in  the  paper  is  improbable,  and  that  the  paper  was  therefore 
a  forgery  ?  The  decisions  of  the  state  courts  as  to  the  admissibility  of 
this  kind  of  evidence  are  not  in  accord.  Those  included  in  class  A 
favor  the  exclusion  of  such  evidence,  while  those  in  class  B  favor  its 
admission.  The  principle  of  exclusion  was  favored  by  Chancellor 
Kent,  and  also  by  Justices  Washington,  Story,  Livingston  and  Thomp- 
son, all  of  whom  once  occupied  seats  upon  the  bench  of  this  court. 

The  cases  cited  in  the  two  classes  do  not  all,  or  even  a  majority 
of  them,  deal  with  the  question  of  forgery,  but  many  of  them  treat 
the  subject  of  declarations  of  a  deceased  person  upon  a  principle 
which  would  admit  or  exclude  them  in  a  case  where  a  forgery  was 
the  issue. 

In  the  cases  contained  in  class  A,  it  is  held  that  declarations,  either 
oral  or  written,  made  by  a  testator,  either  before  or  after  the  date 
of  the  alleged  will,  unless  made  near  enough  to  the  time  of  its  exe- 
cution to  become  a  part  of  the  res  gestae  are  not  admissible  as  evi- 
dence in  favor  of  or  against  the  validity  of  the  will.  The  exception  to 
the  rule  as  admitted  by  these  is  that  where  the  issue  involves  the  testa- 
mentary capacity  of  the  testator  and  also  when  questions  of  undue 
influence  over  a  weakened  mind  are  the  subject  of  inquiry,  declara- 
tions of  the  testator  made  before  or  after,  and  yet  so  near  to  the 


440  Cases  on  Evidence 

time  of  the  execution  of  the  will  as  to  permit  of  the  inference  that 
the  same  state  of  mind  existed  when  the  will  was  made  are  admissible 
for  the  purpose  of  supporting  or  disproving  the  mental  capacity  of  the 
testator  to  make  a  will  at  the  time  of  the  execution  of  the  instrument 
propounded  as  such.  These  declarations  are  to  be  admitted,  not  in 
any  manner  as  proof  of  the  truth  of  the  statements  declared,  but  only 
for  the  purpose  of  showing  thereby  what  in  fact  was  the  mental  con- 
dition, or,  in  other  words,  the  mental  capacity  of  the  testator  at  the 
time  when  the  instrument  in  question  was  executed. 

The  cases  contained  in  class  B  favor  generally  the  admission  of 
declarations  of  the  deceased,  made  under  similar  conditions  in  which 
declarations  are  excluded  by  the  cases  in  class  A. 

If  declarations  of  the  character  now  under  consideration  are  admis- 
sible when  made  prior  to  the  execution  of  the  alleged  will,  although 
not  after  it,  then  a  large  part  of  the  evidence  in  this  case  as  to 
the  oral  and  written  declarations  of  the  deceased  was  properly  ad- 
mitted upon  the  issue  of  forgery,  because  such  declarations  may  have 
all  been  made  before  the  forgery  was  executed,  the  date  of  the  paper 
not  furnishing  any  evidence  of  the  time  when  it  was  in  fact  prepared. 
The  forger  could  not  be  permitted,  by  giving  a  date  to  the  instrument, 
to  fix  the  time  subsequent  to  which  the  declarations  should  be  ex- 
cluded. 

But  we  see  no  good  ground  for  the  distinction.  The  reasons  for 
excluding  them  after  the  date  of  the  will  are  just  as  potent  when 
they  were  made  prior  thereto.  When  made  prior  to  the  will,  it  is 
said  they  indicate  an  intention  as  to  a  testamentary  disposition  of 
property  thereafter  to  be  made,  and  that  such  declarations  may  be 
corroborative  of  the  other  testimony  as  to  what  is  contained  in  the 
will,  as  is  said  by  Mellish,  L.  J.  in  Sugden  v.  Lord  St.  Leonards, 
L.  R.  I  P.  D.  154,  251,  (a  case  of  a  lost  will)  or  else  they  indicate 
the  feeling  of  the  deceased  toward  his  relatives,  from  which  an  infer- 
ence is  sought  that  a  testamentary  provision  not  in  accordance  with 
such  declarations  would  be  forged.  The  declarations  are,  however, 
unsworn  in  either  case,  and  if  they  are  inadmissible  on  that  ground 
when  made  subsequent  to  the  execution  of  the  will,  they  would  be 
also  inadmissible,  when  made  prior  to  its  execution.  In  Stevens  v. 
Vancleve,  4  Washington,  D.  C.  262,  265,  supra,  Mr.  Justice  Washing- 
ton said  that  declarations  of  the  deceased,  prior  or  subsequent  to  the 
execution  of  the  will,  were  nothing  more  than  hearsay,  and  there  was 
nothing  more  dangerous  than  their  admission,  either  to  control  the 


Declarations  Part  of  Rbs  Gestae  441 

construction  of  the  instrument  or  to  support  or  destroy  its  validity. 
Judge  Pennington  concurred  in  those  views. 

After  much  reflection  upon  the  subject,  we  are  inclined  to  the 
opinion  that  not  only  is  the  weight  of  authority  with  the  cases  which 
exclude  the  evidence  both  before  and  after  the  execution,  but  the 
principles  upon  which  our  law  of  evidence  is  founded  necessitate  that 
exclusion.  The  declarations  are  purely  hearsay,  being  merely  un- 
sworn declarations,  and  when  no  part  of  the  res  gestae  are  not  within 
any  of  the  recognized  exceptions  admitting  evidence  of  that  kind. 
Although  in  some  of  the  cases  the  remark  is  made  that  declarations 
are  admissible  which  tend  to  show  the  state  of  the  affections  of  the 
deceased  as  a  mental  condition,  yet  they  are  generally  stated  in  cases 
where  the  mental  capacity  of  the  deceased  is  the  subject  of  the  in- 
quiry, and  in  those  cases  his  declarations  on  that  subject  are  just  as 
likely  to  aid  in  answering  the  question  as  to  mental  capacity  as  those 
upon  any  other  subject.  But  if  the  matter  in  issue  be  not  the  mental 
capacity  of  the  deceased,  then  such  unsworn  declarations,  as  indicative 
of  the  state  of  his  affections,  are  no  more  admissible  than  would  be 
his  unsworn  declarations  as  to  any  other  fact. 

When  they  are  not  a  part  of  the  res  gestae,  declarations  of  this 
nature  are  excluded  because  they  are  unsworn,  being  hearsay  only, 
and  where  they  are  claimed  to  be  admissible  on  the  ground  that  they 
are  said  to  indicate  the  condition  of  mind  of  the  deceased  with  regard 
to  his  affections,  they  are  still  unsworn  declarations,  and  they  cannot 
be  admitted  if  other  unsworn  declarations  are  excluded.  In  other 
words,  there  is  no  ground  for  an  exception  in  favor  of  the  admissi- 
bility of  declarations  of  a  deceased  person  as  to  the  state  of  his  af- 
fections, when  the  mental  or  testamentary  capacity  of  the  deceased 
is  not  in  issue.  When  such  an  issue  is  made,  it  is  one  which  relates 
to  a  state  of  mind  which  was  involuntary  and  over  which  the  deceased 
had  not  the  control  of  the  sane  individual,  and  his  declarations  are 
admitted,  not  as  any  evidence  of  their  truth,  but  only  because  he 
made  them,  and  that  is  an  original  fact  from  which,  among  others, 
light  is  sought  to  be  reflected  upon  the  main  issue  of  testamentary 
capacity.  The  truth  or  falsity  of  such  declarations  is  tlot  important 
upon  such  an  issue  (unless  that  for  the  purpose  of  showing  delusion 
it  may  be  necessary  to  give  evidence  of  their  falsity)  but  the  mere 
fact  that  they  were  uttered  may  be  most  material  evidence  upon  that 
issue.  The  declarations  of  the  sane  man  are  under  his  control,  and 
they  may  or  may  not  reflect  his  true  feelings,  while  the  utterances  of 
the  man  whose  mind  is  impaired   from  disease  or  old  age  are  not 


442  Cases  on  EviDENc:e 

the  result  of  reflection  and  judgment,  but  spontaneous  outpourings 
arising  from  mental  weakness  or  derangement.  The  difference  be- 
tween the  two,  both  as  to  the  manner  and  the  subject  of  the  declara- 
tions of  the  deceased  are  properly  received  upon  the  question  of  his 
state  of  mind,  whether  mentally  strong  and  capable  or  weak  and 
incapable  and  that  from  all  the  testimony,  including  his  declarations, 
his  mental  capacity  can  probably  be  determined  with  considerable 
accuracy.  Whether  the  utterances  are  true  or  false  cannot  be  deter- 
mined from  their  mere  statements  and  they  are  without  value  as 
proof  of  their  truth,  whether  made  by  the  sane  or  insane,  because 
they  are  in  either  case  unsworn  declarations. 

We  are  therefore  of  opinion  that  the  court  below  erred  in  admitting 
this  evidence  upon  the  issue  of  forgery,  and  that  the  error  was  of  a 
most  important  and  material  nature. 

The  judgment  of  the  Court  of  Appeals  of  the  District  of  Columbia 
is  reversed  and  the  cause  remanded  to  that  court  with  directions  to 
reverse  the  judgment  of  the  Supreme  Court  of  the  District  and  to 
remand  the  cause  to  that  court  with  instructions  to  grant  a  new  trial. 


SPRINGFIELD  CONSOLIDATED  RAILWAY  CO.  v. 
PUNTENNEY. 

200  III.  p.      (1902) 

Carter,  J.  The  appellee,  Eleanor  Puntenney,  recovered  a  Judg- 
ment in  the  Sangamon  Circuit  Court  against  the  appellants,  the 
Springfield  Consolidated  Railway  Company  and  the  Springfield  Trans- 
fer Company,  for  damages  for  personal  injuries  which  she  received 
in  a  collision  between  a  street  car  of  said  railway  company  and  a 
cab  of  the  transfer  company  in  which  she  was  being  conveyed  as  a 
passenger.  The  Appellate  Court  affirmed  the  judgment,  and  the  de- 
fendants have  brought  the  record  to  this  court  for  review  on  errors 
of  law. 

It  is  also  claimed  that  the  court  erred  in  not  allowing  Louis  Dellert, 
a  witness  called  by  the  railway  company,  to  testify  to  a  conversation 
he  had  with  the  driver  of  the  cab  just  after  the  accident,  in  which  it 
is  claimed  the  driver  said  that  it  was  all  his  fault.  The  event  had 
fully  transpired,  and  what  was  said  was  purely  narrative  of  a  past 
transaction  fully  ended,  and  did  not  characterize  or  in  any  way  relate 


Deci^arations  Part  oe  Res  Gestae  443 

to  a  transaction  then  taking  place.  While  the  statements  of  the  driver 
of  the  cab  sought  to  be  proved  were  claimed  to  have  been  made 
almost  immediately  after  the  accident,  it  did  not  appear  but  that  they 
were  made  under  circumstances  that  would  deprive  them  of  their 
spontaneous  character  as  utterances  called  forth  by  the  transaction 
itself.  We  are  of  the  opinion  that  it  was  not  made  to  appear  that 
the  statements  called  for  were  a  part  of  the  res  gestae,  and  the  court 
did  not  err  in  excluding  them.  See  Monroe  v.  Snow,  121  111  126; 
21  Am.  &  Eng.  Encyc.  of  Law,  99,  102. 

Judgment  affirmed. 


HUTCHEIS  V.  CEDAR  RAPIDS  &  MARION  CITY  R.  R.  CO. 
128  Iowa  2ig.    (190s) 

Action  to  recover  damages  for  personal  injuries  alleged  to  have 
resulted  from  falling  or  being  thrown  to  the  pavement  in  attempting 
to  alight  from  a  street  car  operated  by  the  defendant  company.  Ver- 
dict and  judgment  for  plaintiff  for  $2,ckx).  Defendant  appeals.  Af- 
firmed. 

McClain,  J.  Plaintiff's  witnesses  were  allowed,  over  defendant's 
objection  to  testify  that  after  plaintiff  fell,  she  exclaimed,  "Yes,  let 
the  step  down  after  I  fall !"  this  declaration  being  relevant  to  similar 
evidence  tending  to  show  that  the  step  was  let  down  after  plaintiff 
fell,  and  not,  as  it  should  have  been  at  the  time  when  the  bar  was 
raised  after  the  car  left  the  bridge,  and  before  it  stopped  at  the  street 
crossing.  The  objection  to  the  admission  of  proof  of  this  declaration 
is  that  it  could  not  be  shown  as  a  part  of  the  res  gestae.  Under  recent 
decisions  of  this  sort,  proof  of  the  declaration  was  admissible.  It 
was  made  immediately  after  the  accident,  with  reference  to  the  cause  of 
the  fall,  without  opportunity  for  premeditation.  Without  elaboration, 
it  is  sufficient  to  refer  to  Rothrock  v.  Cedar  Rapids,  103  N.  W.  475 ; 
Alsever  v.  Minneapolis  &  St.  L.  R.  Co.,  115  Iowa  338;  Keyes  v.  Cedar 
Falls,  107  Iowa  510. 

Finding  no  error  in  the  record,  the  judgment  of  the  lower  court  is 

Affirmed. 


444  .  Cases  on  Evidence 

GREINKE  V.  THE  CHICAGO  CITY  RAILWAY  CO. 
234  III.  564.    (1908) 

Hand,  J.  This  was  an  action  on  the  case  commenced  in  the 
Superior  Court  of  Cook  County  by  the  appellee,  a  minor,  by  her 
next  friend,  to  recover  damages  alleged  to  have  been  sustained  by 
her  on  August  6,  1904,  in  consequence  of  the  negligence  of  the  ap- 
pellant while  she  was  a  passenger  upon  one  of  its  street  cars,  in  the 
city  of  Chicago. 

The  general  issue  was  filed  and  a  trial  resulted  in  a  verdict  in  favor 
of  the  appellee  for  the  sum  of  $5,000,  upon  which  the  trial  court, 
after  overruling  motions  for  a  new  trial  and  in  arrest  of  judgment, 
rendered  judgment,  which  judgment  has  been  affirmed  by  the  Appel- 
late Court  for  the  First  District,  and  a  further  appeal  has  been  prose- 
cuted to  this  court. 

It  is  further  contended  that  the  court  erred  in  admitting  in  evi- 
dence certain  expert  testimony  offered  upon  the  trial  upon  behalf  of 
the  appellee.  It  was  claimed  that  the  appellee  was  suffering  with 
paralysis  as  a  result  of  the  injury  which  she  received,  and  she  called 
as  a  witness  on  her  behalf  one  Dr.  Stephen  W.  Cox,  who  had  exam- 
ined the  appellee  on  the  day  before  he  testified,  to  qualify  himself 
as  an  expert  witness,  and  who  was  permitted  to  testify  over  the 
objection  of  the  appellant,  that  at  the  time  of  his  examination  of  the 
appellee  she  was  nervous;  that  there  was  a  twitching  and  jerking  of 
her  hands;  that  there  was  a  slight  drooping  of  the  left  leg  or  left 
foot  as  she  allowed  it  to  hang  over  a  chair;  that  the  toes  of  the 
left  foot  turned  in  more  than  those  of  her  right  foot;  that  the  step 
with  the  left  foot  was  not  as  strong  as  that  with  the  right, — "not  ex- 
actly a  dragging  but  a  suspicion  of  dragging;"  that  he  tested  the 
strength  of  her  hands  by  taking  hold  of  them  with  his  hands  and 
asking  her  to  squeeze;  that  he  noticed  a  difference  in  the  strength  of 
her  hands;  that  one  thumb  was  weaker  than  the  other;  that  the 
examination  was  not  made  for  the  purpose  of  treating  the  appellee 
but  that  he  might  testify  as  a  witness  in  her  case;  that  he  could  not 
say  positively  whether  the  jerking  and  twitching  which  he  observed 
were  voluntary  or  involuntary ;  that  his  impression  was  that  they  were 
involuntary;  that  the  muscles  which  produced  the  conditions  observed 
by  him  were  voluntary  and  under  the  control  of  the  appellee. 

The  rule  is  well  established  in  this  State  that  the  declarations  of 
the  injured  party,  in  a  case  like  this,  when  made  as  a  part  of  the 


DecIvArations  Part  of  Res  Gestae  445 

res  gestae  or  to  a  physician  during  treatment  or  upon  an  examination 
prior  to  and  without  reference  to  the  bringing  of  an  action  to  recover 
damages  for  the  injury  complained  of,  may  be  introduced  in  evidence ; 
(Illinois  Central  Railroad  Co.  v.  Sutton,  43  III.  438;  West  Chicago 
Street  Railroad  Co.  v.  Carr,  170  id.  478;  Springfield  Consolidated 
Railway  Co.  v.  Hoeffner,  175  id.  634;  Lake  Street  Elevated  Railroad 
Co.  V.  Shaw,  203  id.  39;  Chicago  City  Railway  Co.  v.  Bundy,  210  id. 
39;)  but  the  declarations  of  the  injured  party  made  to  a  physician 
who  has  made  an  examination  of  such  party  with  a  view  to  qualify 
him.self  to  testify  as  a  witness  only,  are  not  admissible.  (Chicago  and 
Eastern  Illinois  Railroad  Co.  v.  Donworth,  203  111.  192;  Chicago  City 
Railway  Co.  v.  Shreve,  226  id.  530;  City  of  Chicago  v.  McNally,  227  id. 
14;  Chicago  Union  Traction  Co.  v.  Giese,  supra;  Eckels  v.  Mutschall, 
230  III.  462;  Kath  v.  Wisconsin  Central  Railway  Co.,  121  Wis.  503;  99 
N.  W.  217;  Grand  Rapids  and  Indiana  Railroad  Co.  v.  Huntley,  38 
Mich.  537.  It  has  also  been  held  that  witnesses  who  are  not  experts 
may  express  their  opinions  as  to  the  physical  condition  of  persons 
whom  they  have  observed ; — that  is,  they  may  state  whether,  in  their 
opinion,  such  persons  are  in  good  health,  have  the  ability  to  perform 
work,  whether  they  are  suffering  pain,  are  conscious  or  unconscious,  in 
possession  of  their  mental  faculties,  etc.  (West  Chicago  Street  Railway 
Co.  V.  Fishman,  169  111.  196;  Cicero  and  Proviso  Street  Railway  Co.  v. 
Priest,  190  id.  592;  Chicago  and  Eastern  Illinois  Railroad  Co.  v. 
Randolph,  199  id.  126.)  The  rule  however,  is  well  settled  that  a 
physician,  when  called  as  a  witness  who  has  not  treated  the  injured 
party  but  has  examined  him  solely  as  a  basis  upon  which  to  found 
an  opinion  to  be  given  in  a  trial  to  recover  damages  for  the  injury 
sustained  by  the  injured  party,  cannot  testify  to  the  statements 
made  by  the  injured  party  to  him,  or  in  his  presence,  during  such 
examination,  or  base  an  opinion  upon  the  statements  of  the  injured 
party.  (Illinois  Central  Railroad  Co.  v.  Sutton,  supra;  West 
Chicago  Street  Railroad  Co.  v.  Carr,  supra;  West  Chicago  Street 
Railroad  Co.  v.  Kennelly,  170  111.  508;  Stevens  v.  People,  215  id.  593.) 
An  expert  witness  called  under  such  circumstances  must  base  his 
cpinion  upon  objective,  and  not  subjective,  conditions.  If,  therefore, 
it  would  have  been  improper  for  Dr.  Cox  to  have  inquired  of  the 
appellee  as  to  the  relative  strength  of  her  hands,  or  as  to  whether 
she  could  use  her  left  leg  as  well  as  her  right  leg,  or  whether  she 
could  walk  without  dragging  her  left  leg,  and  it  would  have  been  in- 
competent for  him  to  have  given  to  the  jury  the  result  of  such  inter- 
rogations by  detailing  to  them  her  replies  to  said  questions  (as  clearly 


446  Cases  on  Evidence 

it  would  have  been),  we  think  it  equally  clear  that  he  could  not  reach 
the  same  result  by  having  her  answer  his  questions  by  a  nod  of  the 
head  of  by  the  pressure  of  her  hands,  or  by  asking  her  to  sit  upon  a 
a  chair,  or  to  walk,  and  then  giving  the  jury  the  results  of  his  ob- 
servations. 

,The  declarations  of  an  injured  party  as  to  his  physical  condition, 
brought  about  as  a  result  of  injury,  are  self-serving,  and,  at  the  best, 
hearsay  evidence.  Statements,  however,  made  by  an  injured  party 
which  form  a  part  of  the  res  gestae,  or  those  made  to  his  physician 
during  treatment,  constitute  an  exception  to  the  general  rule,  and 
are  admitted  by  reason  of  the  fact  that  he  will  not  be  presumed  to 
prevaricate  at  the  very  instant  of  his  injury  or  while  he  is  stating  his 
physical  condition  to  a  physician  from  whom  he  expects  and  hopes  to 
receive  medical  aid,  nor  will  he  be  presumed  to  feign  disease,  pain 
or  distress  under  those  conditions  in  which  he  is  ordinarily  observed 
by  strangers  or  his  friends  and  neighbors.  No  such  safe  guards 
however  surround  him  when  he  is  being  examined  by  an  expert  whom 
he  has  employed  to  examine  him  and  to  give  evidence  in  his  case 
which  is  about  to  be  tried  in  court.  To  permit  the  injured  party, 
while  undergoing  an  examination  by  an  expert  in  his  employ,  by 
jerks  and  twitches,  by  a  pressure  of  his  hand,  by  turning  his  toes  in 
or  by  dragging  one  of  his  legs  when  walking,  to  thus  make  evidence 
for  himself,  bolster  up  and  strengthen  by  his  opinion  the  self-serving 
testimony  thus  manufactured  by  the  injured  party,  would  open  up 
the  door  wide  for  the  grossest  fraud,  which  might  work  upon  his 
adversary  the  most  palpable  injury.  This  character  of  self-serving 
testimony  has  been  held  incompetent  by  the  Supreme  Court  of  Michi- 
gan in  McCormick  v.  City  of  West  Bay  City,  no  Mich,  265,  and 
Comstock  V.  Georgetown  Township,  137  id.  541,  100  N.  W.  788,  and 
the  general  rule  announced  by  that  court  is,  we  think,  in  entire  har- 
mony with  the  ruling  of  this  court  in  the  numerous  cases  hereinbefore 
cited,  and  is  the  correct  rule  and  the  one  most  conducive  to  justice. 

We  do  not  intend  to  hold,  however,  that  a  physician  may  not  be 
able,  from  an  examination  of  an  injured  party,  to  form  and  express  an 
opinion  as  to  his  physical  condition  and  the  probable  cause  which  in- 
duced such  condition,  based  upon  objective  testimony  alone,  but  what 
we  do  intend  to  hold  is,  that  a  physician  who  has  not  treated  the  in- 
jured party  but  who  has  made  an  examination  of  the  injured  party 
solely  with  a  view  to  testify  as  an  expert,  should  not  be  permitted  to 
express  an  expert  opinion  to  the  jury  based  upon  subjective  conditions, 
and  then  be  allowed  to  fortify  his  opinion  by  stating  to  the  jury  acts 


Declarations  Part  of  Res  Gestae  447 

of  the  injured  party  which  could  have  been  purely  voluntary  and  under 
the  control  of  the  injured  party,  and  which  may  rest  upon  no  other 
basis  than  the  truthfulness  of  the  injured  party. 

Judgment  affirmed. 


WATERMAN  v.  WHITNEY. 
iiN.Y.isr.     (1854) 

In  July,  1846,  the  surrogate  of  Broome  county  made  an  order  re- 
fusing to  admit  to  probate,  the  will  of  Joshua  Whitney,  late  of 
Binghamton,  in  said  county,  who  died  in  April,  1845,  The  respond- 
ents. Waterman  and  others,  appealed  from  the  order  of  the  surrogate 
to  the  circuit  judge  of  the  sixth  circuit,  who  in  1847  reversed  the 
order,  and  directed  feigned  issues  to  be  made  and  tried  at  the  next 
Circuit  Court,  to  be  held  in  the  county  of  Broome. 

Issues  were  afterwards  settled  as  follows:  i.  Was  the  instrument 
propounded  by  Thomas  G,  Waterman  and  others,  before  J.  R.  Dick- 
inson, Esq.  late  surrogate  of  the  county  of  Broome,  bearing  date  on 
the  26th  day  of  February,  1844,  and  purporting  to  be  the  last  will  and 
testament  of  Joshua  Whitney,  deceased,  late  of  the  town  of  Chenango, 
county  of  Broome,  duly  made  and  executed  by  the  said  Joshua  Whit- 
ney as  his  last  will  and  testament?  2.  Was  the  said  Joshua  Whitney, 
deceased,  at  the  time  of  making  and  executing  the  said  paper  writing 
bearing  date  of  the  26th  day  of  February,  1844,  purporting  to  be  his 
last  will  and  testament,  of  sound  mind,  and  capable  of  making  a  valid 
disposition  of  his  property,  real  and  personal,  by  last  will  and  testa- 
ment? 3.  Was  there,  on  the  day  of  executing  the  said  paper  writing, 
purporting  to  be  the  last  will  and  testament  of  said  Joshua  Whitney, 
deceased,  or  at  any  time  previous,  any  undue  influence,  fraud  or  de- 
ception used  or  practiced  by  any  person  or  persons  whatever,  to  cause 
or  induce  the  said  Joshua,  deceased,  to  make  or  execute  the  said 
instrument,  propounded  by  the  said  Thomas  G.  Waterman  and  others 
for  proof,  as  the  last  will  and  testament  of  the  said  Joshua  Whitney, 
deceased  ? 

Selden,  J.  The  principal  question  presented  by  the  bill  of  excep- 
tions in  this  case  is,  as  to  the  admissibility  of  the  declarations  of  the 
testator  made  after  the  execution  of  the  will. 

The  subject  to  which  this  question  belongs  is  of  very  considerable 


448  Casks  on  EviofiNce 

interest,  and  one  upon  which  the  decisions  are  to  some  extent  in  con- 
flict. Much  of  the  difficulty,  however,  has  arisen  from  the  omission 
to  distinguish  with  sufficient  clearness,  between  the  different  objects 
for  which  the  declarations  of  testators  may  be  offered  in  evidence,  in 
cases  involving  the  validity  of  their  wills.  It  will  tend  to  elucidate 
the  subject  to  consider  it,  under  the  following  classification  of  the 
purposes  for  which  the  evidence  may  be  offered,  viz.  i.  To  show  a 
revocation  of  a  will  admitted  to  have  been  once  valid.  2.  To  im- 
peach the  validity  of  a  will  for  duress,  or  on  account  of  some  fraud 
or  imposition  practiced  upon  the  testator,  or  for  some  other  cause 
not  involving  his  mental  condition.  3.  To  show  the  mental  in- 
capacity of  the  testator,  or  that  the  will  was  procured  by  undue  in- 
fluence. The  rules  by  which  the  admissibility  of  the  evidence  is  gov- 
erned, naturally  arrange  themselves  in  accordance  with  this  classi- 
fication. They  have,  how-ever,  been  considered  in  most  of  the  cases 
without  regard  to  it;  and  hence  much  of  the  apparent  conflict  among 
them  will  disappear,  when  the  proper  distinctions  are  taken. 

To  show  the  state  of  the  authorities,  therefore,  and  what  the  differ- 
ences really  are  between  them,  it  is  necessary  to  arrange  the  cases 
according  to  this  arrangement  of  the  objects  for  which  the  evidence 
is  given.  In  referring  however,  to  those  belonging  to  the  first  of  these 
divisions,  it  is  proper  to  premise,  that  the  revocation  of  a  valid  will, 
is  a  matter  which  npt  only  in  England,  but  in  this  state,  and  in  most 
if  not  all  the  other  states,  is  regulated  by  statute:  and  these  statutes  are 
substantially  the  same ;  those  in  this  country  being  for  the  most  part 
taken  from  the  English  statute  of  frauds.  Most  if  not  all  these  statutes 
require  either  a  written  revocation  executed  with  the  same  formalities 
as  the  will  itself,  or  some  act  amounting  to  a  virtual  destruction  of 
the  will,  such  as  burning,  tearing,  obliterating,  &c.,  accompanied  by 
an  unequivocal  intention  to  revoke  it.  Mere  words  will  in  no  case 
amount  to  a  revocation. 

Under  these  statutes,  therefore,  the  only  possible  purpose  for  which 
evidence  of  the  declarations  of  the  testator  can  be  given,  upon  a 
question  of  revocation,  is  to  establish  the  animo  revocandi;  in  othc- 
words,  to  show  the  intent  with  which  the  act  relied  upon  as  a  revo- 
cation was  done.  The  cases  on  this  subject  are  in  the  main  in  har- 
mony with  each  other,  and  in  general  entirely  accord  with  the  view 
here  presented. 

I  consider  these  cases  as  establishing  the  doctrine  that  upon  a 
question  of  revocation,  no  declarations  of  the  testator  are  admissible 
except  such  as  accompany  the  act  by  which  the  will  is  revoked;  such 


D:ecLARATioNS  Part  OF  Res  Gkstae  449 

declarations  being  received  as  a  part  of  the  res  gestae,  and  for  the 
purpose  of  showing  the  intent  of  the  act. 

In  regard  to  the  second  class  of  cases,  viz.  where  the  validity  of  a 
will  is  disputed  on  the  ground  of  fraud,  duress,  mistake  or  some  simi- 
lar cause,  aside  from  the  mental  weakness  of  the  testator,  I  think  it 
equally  clear  that  no  declarations  of  the  testator  himself  can  be 
received  in  evidence  except  such  as  were  made  at  the  time  of  the 
execution  of  the  will  and  are  strictly  a  part  of  the  res  gestae. 

I  have  referred  thus  particularly  to  these  numerous  cases  in  which 
the  declarations  of  testators  have  been  held  inadmissible  upon  contests 
respecting  the  validity  of  their  wills,  for  the  purpose  of  showing  that 
they  all  apply  to  one  or  the  other  of  the  first  two  of  the  three  classes 
into  which  I  have  divided  the  cases  on  the  subject.  None  of  them 
have  any  application  to  cases  in  which  the  will  is  assailed  on  account 
of  the  insanity,  or  mental  incapacity  of  the  testator  at  the  time  the  will 
was  executed,  or  on  the  ground  that  the  will  was  obtained  by  undue 
influence.    - 

The  diflFerence  is  certainly  very  obvious  between  receiving  the  dec- 
laration of  a  testator,  to  prove  a  distinct  external  fact,  such  as  duress 
or  fraud  for  instance,  and  as  evidence  merely  of  the  mental  condition 
of  the  testator.  In  the  former  case,  it  is  mere  hearsay,  and  liable  to 
all  the  objections  to  which  the  mere  declarations  of  third  persons  are 
subject ;  while  in  the  latter  it  is  the  most  direct  and  appropriate  species 
of  evidence.  Questions  of  mental  competency  and  of  undue  influence 
belong  in  this  respect  to  the  same  class ;  because,  as  is  said  by  Jarman 
in  his  work  on  wills,  "The  amount  of  undue  influence  which  will  be 
sufficient  to  invalidate  a  will,  must  of  course  vary  with  the  strength 
or  weakness  of  the  mind  of  the  testator."  (Jarman  on  Wills,  36.) 
So  the  mental  strength  and  condition  of  the  testator  is  directly  in  issue 
in  every  case  of  alleged  undue  influence;  and  the  same  evidence  is 
admissible  in  every  such  case,  as  in  cases  where  insanity  or  absolute 
incompetency  is  alleged.  It  is  abundantly  settled  that  upon  either 
of  these  questions,  the  declarations  of  the  testator,  made  at  or  before 
the  time  of  the  execution  of  the  will,  are  competent  evidence.  The 
only  doubt  which  exists  on  the  subject  is,  whether  declarations  made 
subsequent  thereto  may  be  also  received. 

There  is  no  conflict  between  the  doctrine  here  advanced  in  regard 
to  the  admissibility  of  the  species  of  evidence  in  question,  and  the 
rule  before  adverted  to,  which  excludes  it  when  the  issue  is  as  to  the 
revocation  of  a  will.  The  diflFerence  between  the  two  cases  consists 
in  the  different  nature  of  the  inquiries  involved.    One  relates  to  a  vol- 


450  Cases  on  Evidence 

untary  and  conscious  act  of  the  mind ;  and  the  other  to  its  involuntary 
state  or  condition.  To  receive  evidence  of  subsequent  declarations  in 
the  former  case,  would  be  attended  with  all  the  dangers  which 
could  grow  out  of  changes  of  purpose  or  of  external  motive  operation 
upon  an  intelligent  mind.  No  such  dangers  would  attend  the  evi- 
dence upon  inquiries  in  relation  to  the  sanity  or  capacity  of  the 
testator. 

The  judgment  of  the  Supreme  Court  must  be  reversed,  and  there 
must  be  a  new  trial  of  the  issues. 

Deni,  Johnson,  Parker,  Allen  and  Edwards,  JJ.,  concurred. 


CLARK  v.  TURNER. 
§0  Neb.  2po.     (1897) 


Irvine,  C. 

John  J.  Turner  was  an  elderly  citizen  of  the  city  of  Lincoln,  blessed 
with  a  pious  disposition  and  a  considerable  quantity  of  this  world's 
goods.  He  died  March  i,  1890,  leaving  him  surviving  two  sons,  Wil- 
liam J.  Turner  and  R.  Morris  Turner.  Some  time  after  his  death 
William  M.  Clark  and  Nahum  S.  Scott  propounded  for  probate  what 
purported  to  be  a  copy  of  John  J.  Turner's  last  will  and  testament,  it 
being  alleged  that  said  will  had  been  deposited  in  a  valise  belonging  to 
the  testator,  which,  after  his  death,  had  been  delivered  to  his  sons,  and 
that,  thereafter  it  was  claimed  that  the  house  in  Avhich  the  valise  had 
been  kept  was  burglariously  entered,  the  valise  cut  open,  and  its  con- 
tents extracted.  The  probate  was  contested  by  the  two  sons.  The  re- 
sult of  the  proceedings  on  the  county  court  does  not  appear  from  the 
record.  The  case  was,  however,  appealed  to  the  district  court,  where, 
as  a  result  of  what  appears  to  have  been  a  third  trial  there,  a  verdict  was 
rendered  in  favor  of  the  contestants. 

The  difficulty  lies  in  the  proof  which  was  offered  as  to  the  contents 
of  the  will.  It  does  not  appear  that  any  person  ever  read  the  will,  or 
was  aware  of  any  portion  of  its  contents  except  through  statements 
made  by  Dr.  Turner.  The  strongest  evidence  is  that  of  Captain  Scott, 
to  the  effect  that  Dr.  Turner  came  to  his  office  declaring  that  he  had 
made  his  will,  and  then  read  it  to  Captain  Scott,  asking  him  whether  it 
was  in  legal  form.  Captain  Scott  was  blind  and  therefore  did  not  see 
the  will  himself,  so  that  his  testimony  amounts  to  nothing  more  than 
a  repetition  of  Dr.  Turner's  declarations  as  to  its  contents.    In  addition 


Declarations  Part  of  Res  Gestae  451 

to  this  there  is  evidence  of  a  few  declarations  made  to  others  subse- 
quently as  to  the  effect  of  different  provisions  contained  in  the  will. 
Dr.  Turner  told  Mr.  Clark  that  he  and  Captain  Scott  were  named  as 
executors.  He  told  Karen  Rootham  that  he  had  provided  for  her ;  he 
told  his  pastor,  Dr.  Curtis,  something  in  regard  to  the  bequests  to  the 
two  missionary  boards;  beyond  this  there  is  no  evidence  as  to  the 
contents  of  the  will. 

The  precise  question  does  not  seem  to  have  often  arisen.  We  think 
all  the  cases  hold  that  the  declarations  of  a  testator  may  be  received  in 
evidence  to  prove  the  existence  of  a  will  and  in  proof  of  issues  relating 
to  the  testator's  competency  or  to  undue  influence,  but  it  has  been 
doubted  whether  such  declarations  may  be  received  to  establish  a  revoca- 
tion. It  follows  that  in  all  proceedings  to  probate  a  lost  will,  such 
declarations  are  admissible  in  evidence  because  the  existence  of  the 
will  must  necessarily  be  established  by  some  such  indirect  method.  The 
declarations  having  been  admitted  for  that  purpose  their  sufficiency  to 
establish  the  contents  of  the  will  is  another  question. 

In  England,  prior  to  the  leading  case  of  Sugden  v.  Lord  St.  Leonards, 
L.  R.,  I  P.  D^  154,  it  was  considered  that  the  declarations  were  not 
admissible  as  tending  to  prove  the  contents.  Doe  v.  Palmer,  16  O.  B. 
(Eng.),  747,  turned  upon  the  question  whether  an  interlineation  had 
been  made  before  or  after  the  execution  of  the  will,  and  it  was  held  that 
the  testator's  declarations  as  to  his  intentions  made  before  the  execution 
of  the  will  were  admissible,  but  the  declarations  made  after  its  execu- 
tion were  not.  Quick  v.  Quick,  3  Swab.  &  T.  (Eng.),  442,  was  a  case 
startlingly  like  that  at  bar  in  some  points.  The  sole  evidence  of  the 
contents  of  the  will  was  the  testator's  declaration.  There  was  the  same 
fact  of  the  will  being  kept  in  a  bag  and  of  its  being  taken  by  burglars. 
The  court  held  that  there  was  a  failure  of  proof,  holding  also  that  the 
declarations  were  incompetent.  The  Court  of  Appeals,  however,  in 
vSugden  v.  Lord  St.  Leonards,  overruled  Quick  v.  Quick  and  distinctly 
held  such  declarations  admissible.  The  will  in  question  was,  however, 
proved  by  much  other  evidence;  Miss  Sugden,  the  testator's  daughter, 
had  not  only  heard  the  will  read  but  she  had  herself  read  it  a  number 
of  times  and  was  able  to  testify  in  much  detail  as  to  its  contents  from 
such  personal  inspection ;  moreover,  not  less  than  eight  codicils  were 
found,  the  terms  of  these  all  tending  to  corroborate  her  .as  to  the  con- 
tents of  the  original  will..  In  addition  to  this  proof  there  was  the  evi- 
dence of  the  testator's  declarations  as  to  the  will's  contents.  The  long 
and  exhaustive  opinions  are  directed  only  incidentally  to  the  admissibil- 
ity of  the  declarations.    The  crucial  question  having  been  whether  all 


452  Cases  on  Evidence 

the  evidence  was  sufficient  to  establish  the  will,  the  case,  therefore,  falls 
far  short  of  holding  that  the  contents  of  a  lost  will  may  be  proved 
solely  by  the  declarations  of  the  testator.  Its  effect  is  merely  that  such 
declarations  are  admissible  to  corroborate  more  direct  evidence.  This 
is  the  construction  given  the  case  by  the  house  of  lords  in  Woodward 
V.  Goulstone,  ii  App.  Cas.  (Eng.),  469,  where  the  declarations  of  the 
testator  were  held  insufficient  alone  to  establish  the  will.  An  intima- 
tion was  given  that  Sugden  v.  Lord  St.  Leonards  was  not  considered 
free  from  doubt  and  the  question  there  presented  left  open.  The  im- 
portance of  interests  involved  in  probate  cases  in  Egland  is  such  that 
the  decisions  of  English  courts  on  such  subjects  are  entitled  to  great 
weight,  and  we  may  safely  say  that  the  result  of  the  English  cases  is 
that  the  contents  of  a  lost  will  cannot  be  established  solely  by  the  decla- 
rations of  the  testator,  although  such  declarations  are  now  deemed 
admissible  for  the  purpose  of  corroboration. 

The  American  cases  relied  on  to  support  proponents'  theory  are, 
when  examined,  in  strict  accordance  with  the  English  rule.  In  re  Page, 
118  111.  576,  expressly  follows  Sugden  v.  Lord  St.  Leonards,  and  comes 
within  the  true  doctrine  of  that  case,  because  the  declarations  in  that 
case  merely  went  to  corroborate  the  testimony  of  the  lawyer  who  drew 
the  will  and  who  produced  a  copy  thereof. 

On  no  subject,  perhaps,  are  statutes  so  strict  in  requiring  a  writing 
executed  and  attested  in  certain  forms  as  in  the  case  of  wills,  and 
while  it  is  firmly  established  that  a  lost  will  may  be  proved  by  secondary 
evidence,  the  courts  have  always  required  such  evidence  to  be  direct, 
clear  and  convincing.  As  said  by  the  Supreme  Court  of  the  United 
States  in  Leav.  Polk  County  Copper  Co.,  21  How.  493:  "Courts  of 
justice  lend  a  very  unwilling  ear  to  statements  of  what  dead  men  have 
said."  Such  evidence  is  always  considered  dangerous,  and  subject  to 
the  closest  scrutiny.  We  think  it  would  be  in  the  highest  degree  dan- 
gerous, and  would  be  violative  of  the  object  and  spirit  of  the  statute, 
should  we  hold  that  the  existence  and  contents  of  an  alleged  will  might 
be  established  solely  by  testimony  of  the  testator's  declarations.  As 
already  indicated,  this  view  leads  to  affirmation  of  the  judgment,  because 
the  verdict  was  the  only  one  warranted  by  the  evidence. 

Judgment  affirmed. 


Note.  The  term  "res  gestCB,"  as  used  In  the  law  of  evidence,  has  a 
vague  meaning.  Interpretations  of  the  term  by  the  courts  are  not  at  all 
harmonious.  As  said  by  Chief  Justice  Beasley,  "I  think  I  may  safely  say 
that  there  are  few  problems  in  the  law  of  evidence  more  unsolved  than 
what  things  are  embraced  in  those  occurrences  that  are  designated  in  the 
law  as  the  res  gestce"  (Hunter  v.  State,  40  N.  J.  L.  536). 


Opinion  Evidence  453 

opinion  evidence.! 

HARDY  V.  MERRILL. 
56  N.  H.  227.    (1875) 

Appeal  by  William  H.  Hardy  against  Isaac  D.  Merrill,  from  the 
decree  of  the  judge  of  probate  approving  and  allowing,  in  solemn  form, 
the  will  of  Joseph  Hardy,  deceased.  Said  will  was  dated  July  26,  1870. 
Issues  had  been  made  up  at  the  law  term,  and  sent  to  the  Circuit  Court 
for  trial  by  jury.  The  issues  were  in  common  form.  In  the  first,  the 
executor  alleged  that  the  said  Joseph  Hardy  was  of  sound  mind ;  and 
in  the  second,  he  alleged  that  said  will  was  not  obtained  by  undue  in- 
fluence :  upon  both  of  which  allegations  issue  was  taken  by  the  appellant. 

Foster,  C.  J.,  C.  C.  The  case  before  us  involves  an  inquiry  into  the 
nature  and  extent  of  the  exceptions  to  the  general  rule,  that  testimony 
of  facts  alone  is  admissible  in  courts  of  justice,  and  that  the  opinions  of 
witnesses  are  to  be  excluded. 

Opinions  concerning  matters  of  daily  occurrence,  and  open  to  com- 
mon observation,  are  received  from  necessity — Commonwealth  v.  Stur- 
tevant,  117  Mass.;  and  any  rule  which  excludes  testimony  of  such  a 
character,  and  fails  to  recognize  and  submit  to  that  necessity,  tends  to 
the  suppression  of  truth  and  the  denial  of  justice. 

The  ground  upon  which  opinions  are  admitted  in  such  cases  is,  that, 
from  the  very  nature  of  the  subject  in  issue,  it  cannot  be  stated  or 
described  in  such  language  as  will  enable  persons,  not  eye-witnesses  to 
form  an  accurate  judgment  in  regard  to  it.  De^^^itt  v.  Barley,  17  N.  Y. 
340;  Bellows,  J.,  in  Taylor  v.  Grand  Trunk  Railway,  48  N.  H.  309. 

How  can  a  witness  describe  the  weight  of  a  horse,  or  his  strength? 
or  his  value?  Will  any  description  of  the  wrinkles  of  the  face,  the  color 
of  the  hair,  the  tones  of  the  voice,  or  the  elasticity  of  step,  convey  to  a 
jury  any  very  accurate  impression  as  to  the  age  of  the  person  described? 
And  so,  also,  in  the  investigation  of  mental  and  psychological  conditions, 
— because  it  is  impossible  to  convey  to  the  mind  of  another  any  adequate 
conception  of  the  truth  by  a  recital  of  visible  and  tangible  appearances, — 
because  you  cannot,  from  the  nature  of  the  case,  describe  emotions, 
sentiments,  and  affections,  which  are  really  too  plain  to  admit  of 
concealment,  but,  at  the  same  time,  incapable  of  descriptions, — the 
opinion  of  the  observer  is  admissible  from  the  necessity  of  the  case; 


1  Hughes  on  Evidence,  p.  155. 


454  Cases  oisr  Evidenck 

and  witnesses  are  permitted  to  say  of  a  person,  "He  seemed  to  be 
frightened ;"  "he  was  greatly  excited ;"  "he  was  much  confused ;"  he 
was  "agitated ;"  "he  was  pleased ;"  "he  was  angry."  All  these  emotions 
are  expressed  to  the  observer  by  appearance  of  the  countenance,  the  eye. 
the  general  manner  and  bearing  of  the  individual — ^appearances  which 
are  plainly  enough  recognized  by  a  person  of  good  judgment  but  which 
he  can  not  otherwise  communicate  than  by  an  expression  of  results  in 
the  shape  of  an  opinion.  See  Best  on  the  Principles  of  Evidence  585. 
It  is  on  this  principle,  says  Mr.  Best,  that  testimony  to  character  is 
received:  as  where  a  witness  deposes  to  the  good  or  bad  character  of 
a  party  who  is  being  tried  on  a  criminal  charge,  or  states  his  convic- 
tion tliat,  from  the  general  character  of  another  witness,  he  ought  not 
to  be  believed  on  his  oath.  Best  on  Ev.  657.  "So,"  continues  Mr.  Best, 
"the  state  of  an  unproducible  portion  of  real  evidence, — ^as,  for  in- 
stance, the  appearance  of  a  building  or  of  a  public  document  which  the 
law  will  not  allow  to  be  brought  from  its  repository, — may  be  explained 
by  a  term  expressing  a  complex  idea,  e.  g.,  that  it  looked  old,  decayed, 
or  fresh;  was  in  good  or  bad  condition,  &c.  So,  also,  may  the  emo- 
tions or  feelings  of  a  party  whose  psychological  condition  is  a  question. 
Thus,  a  witness  may  state  as  to  whether,  on  a  certain  occasion,  he 
looked  pleased,  excited,  confused,  agitated,  frightened,  or  the  like." 

A  non-expert  may  testify  that  he  thought  a  horse  "was  not  then 
sound:  his  feet  appeared  to  have  a  disease  of  long  standing" — Willis 
V.  Quimby,  31  N.  H.  485,  487;  that  a  horse  "appeared  to  be  well,  and 
free  from  disease;"  that  he  thought  "he  never  saw  any  indication  of 
the  horse  being  diseased" — Spear  v.  Richardson,  34  N.  H.  428-431. 
These  two  cases  relate  to  the  physical  condition  of  a  horse.  The  same 
doctrine  is  equally  well  settled  in  relation  to  the  mental  and  moral 
condition  of  a  horse,  so  to  speak ;  for,  in  State  v.  Avery,  44  N.  H.  393, 
392,  it  was  held — Bellows,  J. — that  a  non-expert  might  testify,  on  an 
indictment  for  cruelly  beating  a  horse,  that  the  horse  drove  like  a 
pleasant  and  well-disposed  horse,  unless  when  harassed  by  the  whip ; 
that,  at  the  time  of  the  beating,  he  saw  no  viciousness  or  obstinacy  in 
the  horse,  and  that  the  blows  appeared  to  affect  the  horse  in  a  particular 
manner.  The  evidence  was  opinion,  and  nothing  else;  and  it  was 
opinion  of  the  mental  and  moral  condition  of  the  horse,  judged  of  by 
the  witness  from  actions  which  it  was  impossible  for  the  witness  to 
describe  in  any  better  or  more  satisfactory  way,  so  as  to  give  the  jury 
the  best  evidence  the  nature  of  the  subject  permitted. 

In  Whittier  v.  Franklin,  .6  N.  H.  23,  an  action  for  a  defective  high- 
way,— one  point  of  the  defense  being  that  the  plaintiff's  horse,  which  he 


Opinion  Evidence  455 

was  driving  at  the  time  of  the  accident,  was  vicious  and  unsafe,  and 
that  the  plaintiff's  injuries  were  caused  by  the  vices  of  his  horse, — it 
was  held — ^Judge  Bellows  delivering  the  opinion  of  the  court — that  a 
non-expert  who  witnessed  the  accident  might  testify  that  he  did  not 
see  any  appearance  of  fright;  that  the  horse  did  not  appear  to  be 
frightened  in  the  least  before  he  went  off  the  bank,  or  afterwards ;  that 
he  appeared  to  be  rather  a  sulky  dispositioned  horse  to  use."  Judge 
Bellows  cites  People  v.  Eastwood,  14  N.  Y.  562,  where  it  was  held  that 
opinions  as  to  whether  a  person  is  intoxicated  may  be  received.  Milton 
V.  Rowland,  11  Ala.  732 — opinions  as  to  the  existence  of  disease,  when 
perceptible  to  the  senses;  Bennett  v.  Fail,  26  Ala.  605 — opinion  that  a 
slave  appeared  to  be  healthy ;  and  other  cases  in  relation  to  opinions  of 
a  healthy  or  sickly  condition  of  body.  He  also  cites  Spear  v.  Richard- 
son and  Wills  v.  Quimby,  before  referred  to,  as  to  opinion  of  health  of 
horses.  The  very  learned  judge  says  that  the '  substance  of  the  state- 
ment of  the  witness  is,  that  the  horse  did  not  appear  to  be  frightened, 
but  appeared  to  be  sulky,  that,  on  such  subjects,  persons  of  common 
observation  may  and  do  form  opinions,  that  are  reasonably  reliable  in 
courts  of  justice,  from  marks  and  peculiarities  that  could  not  in  words 
be  conveyed  to  the  minds  of  jurors,  to  enable  them  to  make  the  just 
inferences ;  that  it  is  much  like  the  testimony  that  a  horse  appeared  well 
and  free  from  disease,  or  that  a  person  appeared  to  be  healthy,  or  in- 
toxicated— p.  26.    The  evidence  was  held  admissible  as  an  opinion. 

What  reason  is  there  for  allowing  a  witness  to  testify  that  a  horse 
appeared  to  have  a  sulky  disposition,  and  not  allowing  the  same  witness 
to  testify  that  a^man  appeared  to  have  a  similar  disposition?  \Vhat 
difference  whether  the  witness  says,  "He  appeared  to  have  a  sulky 
disposition"?  or,  "In  my  opinion,  based  upon  my  own  observation  of 
him,  he  had  a  sulky  disposition." 

A  non-expert  may  give  his  opinion  on  the  physical  health  of  a  man  as 
well  as  on  the  physical  health  of  a  horse — State  v.  Knapp,  45  N.  H.  148- 
150;  may  give  his  opinion  not  only  that  a  horse  did  not  appear  to  be 
frightened,  but  also  that  a  lady  did  not  seem  to  be  frightened  or  ex- 
cited— Taylor  v.  Railway,  48  N.  H.  304,  30<5,  309. 

The  opinion  of  non-experts  in  relation  to  mental  condition  is  not 
limited  to  the  question  of  a  mental  disturbance  caused  by  fright.  In 
Bradley  v.  Salmon  Falls  Manufacturing  Co.,  30  N.  H.  487,  491,  it 
was  held  that  a  non-expert  might  testify  that  the  plaintiff  "seemed 
satisfied  with  a  business  arrangement  proposed  to  him  by  the  witness." 

In  McKee  v.  Nelson,  4  Cow.  355,  it  was  held  that,  in  an  action  for  a 
breach  of  promise  of  marriage,  a  witness  who  knew  the  plaintiff  and 


456  Cases  on  Evidence 

had  observed  her  conduct  and  deportment  towards  the  defendant,  was 
permitted  to  express  his  opinion  that  the  plaintiff  was  sincerely  attached 
to  the  defendant, — "a  fact"  said  Judge  Selden,  "which  it  is  plain  could 
be  proved  in  no  other  way;"  and  this  decision  was  cited  as  undoubted 
law  by  Judge  Parker,  in  Robertson  v.  Stark,  15  N.  H.  114,  115.  In 
McKee  V.  Nelson,  the  court  say, — "There  are  a  thousand  nameless 
things,  indicating  the  existence  and  degree  of  the  tender  passion,  which 
language  cannot  specify" — precisely  what  Judge  Bellow,  in  Whittier  v. 
Franklin,  said  of  the  frightened  mental  condition  and  sulky  disposition 
of  a  horse. 

Better  illustrations,  I  think,  could  not  be  had  of  the  meaning  of  the 
rule  admitting  the  best  evidence. 

A  boy  works  many  years  on  a  farm;  and  the  question  arises,  What 
was  the  value  of  his  services?  Suppose  he  is  dead,  as  is  the  subject  of 
inquiry  in  this  and  every  testamentary  case;  one  of  the  material  ques- 
tions would  be  whether  the  boy  was  bright  or  stupid,  amiable  or 
morose.  What  evidence  on  these  points  would  be  so  satisfactory  as 
the  opinions  of  the  intelligent  and  disinterested  farmers  in  the  neigh- 
borhood, who  knew  him  well?  If  there  was  a  general  concurrence  in 
their  opinions,  one  way  or  the  other,  would  it  not  be  decisive?  and,  if 
there  was  not  a  concurrence,  would  not  the  cross-examination  as  to  the 
grounds  and  reasons  of  their  opinions  generally  show  the  facts  much 
better  than  any  statement  of  facts  without  opinions? 

What  facts  without  opinion  can  any  parent  state  as  to  his  own 
children,  to  give  a  stranger  any  such  tangible  and  satisfactory  informa- 
tion of  their  mental  and  moral  peculiarities  as  is  given  by  an  expression 
of  his  opinion? 

It  would  be  superfluous  for  me  to  add  that  I  fully  concur  in  the 
views  and  opinions  expressed  by  Judge  Doe  in  Boardman  v.  Woodman 
and  State  v.  Pike,  and  that  I  cordially  endorse  the  remarks  of  Judge 
Redfield  (11  Am.  Law  Reg.,  N.  E.  page  259),  as  follows:  "The 
learned  judge  shows  very  conclusively,  both  upon  authorities  and 
reason,  that  the  opinion  of  the  unprofessional  witnesses,  in  such  a  case, 
is  commonly  far  more  reliable  as  a  basis  of  ultimate  decision  in  ques- 
tions of  sanity  and  mental  capacity,  than  any  specific  facts  which  could 
possibly  be  gathered  from  the  witnesses.  We  have  said  in  our  book  on 
wills,  and  in  other  places,  all  that  we  could  desire  to  say,  both  as  to 
the  rationale  of  the  rule,  and  the  support  which  it  receives  from  au- 
thority. The  tendency  of  the  American  courts  in  the  last  few  years 
has  been  largely  in  the  direction  contended  for  by  the  learned  judge; 
and  there  seems  to  be  little  question  that  it  must  ultimately  prevail  all 


Opinion  Evidence  457 

but  universally.  We  should  rejoice  at  such  a  result,  as  greatly  tending 
towards  the  establishment  of  truth  with  greater  facility  and  certainty 
in  a  very  important  class  of  cases."  See  Redf.  on  Wills  (4th  ed.,  A.  D. 
1876)  138-145,  where  many  other  cases  than  those  hereinbefore  al- 
luded to  are  cited  and  commented  upon. 

Thus  supported  upon  principle  and  authority,  I  am  satisfied  that  the 
time  has  arrived  when  this  court  is  called  upon  to  declare  the  law  to  be 
in  conformity  wifli  the  views  I  have  expressed. 

Ladd,  J.  I  think  it  is  shown  by  proofs  which  fall  little,  if  at  all,  short 
of  demonstration,  that  the  doctrine  excluding  the  opinions  of  non- 
experts on  the  question  of  insanity  has  grown  up  in  this  state  within 
the  memory  of  men  now  living  in  the  profession;  that  it  had  no  place 
in  the  common  law  brought  here  from  England,  nor  in  the  jurispru- 
dence or  practice  in  this  state,  from  the  constitution  down  to  a  com- 
paratively recent  date;  that  it  is  contrary  to  reason,  extremely  difficult 
of  application,  and  inconvenient  in  practice;  that  the  great  weight  of 
judicial  opinion  and  authority  outside  this  state  is  against  it;  and  that, 
even  if  we  look  at  the  condition  of  authority  as  shown  by  the  expression 
of  judicial  opinion  and  practice  in  this  state,  the  balance  cannot  fairly 
be  said  to  be  in  favor  of  the  rule.  No  titles  are  to  be  disturbed  by 
adopting  a  rule  more  consonant  with  reason,  and  which  accords  with 
the  almost  universal  practice  in  jurisdictions  where  the  common  law  is 
used  the  world  over.  I  therefore  concur  fully  with  my  brother  Foster 
in  the  conclusions  at  which  he  has  arrived. 

Gushing,  C.  J.,  concurred. 

Case  discharged. 


CONNECTICUT  MUTUAL  LIFE  INS.  CO.  v.  LATHROP. 

Ill  U.  S.  612.    (1883) 

This  was  a  writ  of  error  from  a  judgment  in  favor  of  Helen  Pitkin, 
the  beneficiary  in  two  policies  issued  by  the  Connecticut  Mutual  Life  In- 
surance Company  upon  the  life  of  her  husband — one,  on  the  loth  day 
of  August,  1866,  for  the  sum  of  $5,000;  and  the  other,  on  the  24th  day 
of  September,  1873,  for  the  sum  of  $423.  The  insured,  George  E. 
Pitkin,  died  on  the  29th  day  of  September,  1878.  After  the  case  came 
to  this  court  the  beneficiary  in  the  policies  died,  and  there  was  a  revivor 
against  her  personal  representative. 


458  Cases  on  Evidence 

The  defense  was  the  same  as  to  each  poHcy.  Briefly  stated,  it  was 
this :  That  the  policy  expressly  provides  that  in  case  the  insured  shall, 
after  its  executioti,  become  so  far  intemperate  as  to  impair  his  health, 
or  induce  delirium  tremens,  or  should  die  by  his  own  hand,  it  shall  be 
void  and  of  no  effect;  that,  after  its  execution  and  delivery,  he  did 
become  so  far  intemperate  as  to  impair  his  health,  and  induce  delirium 
tremens;  also,  tliat  he  died  by  his  own  hand,  because  with  premedita- 
tion and  deliberation,  he  shot  himself  through  the  head  with  a  bullet 
discharged  by  himself  from  a  pistol,  by  reason  whereof  he  died.  Fur- 
ther, that  the  affirmative  answer  by  plaintiff,  in  her  application  for 
insurance,  to  the  question,  whether  the  insured  was  then  and  had 
always  been  of  temperate  habits,  being  false  and  untrue,  the  contract 
was  annulled;  because,  by  its  terms,  the  policy  was  to  become  void  if 
the  statements  and  representations  in  the  applicatipn — constituting  the 
basis  of  the  contract  between  the  parties — were  not  in  all  respects  true 
^nd  correct. 

The  plaintiff,  in  her  reply,  put  in  issue  all  the  material  allegations  of 
the  answer,  except  that  alleging  the  self-destruction  of  her  husband; 
as  to  which  she  averred  that,  "at  the  time  he  committed  said  act  of 
.self-destruction,  and  with  reference  thereto,"  he  "was  not  in  possession 
of  his  mental  faculties  and  was  not  responsible  for  said  act." 

Mr.  Justice  Harlan.  At  the  close  of  the  evidence  introduced  for 
the  plaintiff,  the  defendant,  by  counsel,  moved  the  court  to  instruct  the 
jury  that  upon  the  pleadings  and  evidence  the  plaintiff  could  not  recover. 
That  motion  was  denied,  and  the  action  of  the  court — ^to  which  the 
defendant  at  the  time  excepted — is  assigned  for  error. 

This  brings  us  to  the  consideration  of  the  substantial  questions  pre- 
sented by  the  assignments  of  error.  They  relate  to  the  admission, 
against  the  objections  of  the  defendant,  of  certain  evidence  touching 
the  condition  of  the  mind  of  the  insured  at  or  about  the  time  he  de- 
stroyed his  life. 

It  is  contended,  in  behalf  of  plaintiff  in  error,  that  the  impressions  and 
opinions  of  these  non-professional  witnesses  as  to  the  mental  condition 
of  the  insured,  although  accompanied  by  a  statement  of  the  grounds 
upon  which  they  rested,  were  incompetent  as  evidence  of  the  fact  of 
insanity.  This  question  was  substantially  presented  in  Ins.  Co.  v.  Rodel, 
ubi  supra,  which  was  an  action  upon  a  life  policy  containing  a  clause  of 
forfeiture  in  case  the  insured  died  by  his  own  hand.  The  issue  was  as 
to  his  sanity  at  the  time  of  the  act  of  self-destruction.  Witnesses  ac- 
quainted with  him  described  his  conduct  and  appearance  at  or  about, 
and  shortly  before,  his  death.    They  testified  that  he  "looked  like  he 


Opinion  Evidence  459 

was  insane;"  another,  that  his  impression  was  that  the  insured  "was 
not  in  his  right  mind."  In  that  case  the  conrt  said  that,  "although 
such  testimony  from  ordinary  witnesses  may  not  have  great  weight 
with  experts,  yet  it  was  competent  testimony,  and  expressed  in  an 
artificial  way  the  impressions  which  are  usually  made  by  insane  per- 
sons upon  people  of  ordinary  understanding." 

The  general  rule  undoubtedly  is,  that  witnesses  are  restricted  to  proof 
of  facts  within  their  personal  knowledge,  and  may  not  express  their 
opinion  or  judgment  as  to  matters  which  the  jury  or, the  court  are 
required  to  determine,  or  which  must  constitute  elements  in  such  de- 
termination. To  this  rule  there  is  a  well-established  exception  in  the 
case  of  witnesses  having  special  knowledge  or  skill  in  the  business,  art, 
or  science,  the  principles  of  which  are  involved  in  the  issue  to  be  tried. 
Thus,  the  opinions  of  medical  men  are  admissible  in  evidence  as  to  the 
sanity  or  insanity  of  a  person  at  a  particular  time,  because  they  are 
supposed  to  have  become  by  study  and  experience,  familiar  with  the 
symptoms  of  mental  disease  and,  therefore  qualified  to  assist  the  court 
or  jury  in  reaching  a  correct  conclusion.  And  such  opinions  of  medical 
experts  may  be  based  as  well  upon  facts  within  their  personal  knowl- 
edge, as  upon  a  hypothetical  case  disclosed  by  the  testimony  of  others. 
But  are  there  no  other  exceptions  to  the  general  rule  to  which  we  have 
referred  ? 

While  the  mere  opinion  of  a  non-professional  witness,  predicated 
upon  facts  detailed  by  others,  is  incompetent  as  evidence  upon  an  issue 
of  insanity,  his  judgment,  based  upon  personal  knowledge  of  the  cir- 
cumstances involved  in  such  an  inquiry,  certainly  is  of  value;  because, 
the  natural  and  ordinary  operations  of  the  human  intellect,  and  the 
appearance  and  conduct  of  insane  persons,  as  contrasted  with  the  ap- 
pearance and  conduct  of  persons  of  sound  mind,  are  more  or  less 
understood  and  recognized  by  every  one  of  ordinary  intelligence  who 
comes  in  contact  with  his  species.  The  extent  to  which  such  opinions 
should  influence  or  control  the  judgment  of  the  court  or  jury  must  de- 
pend upon  the  intelligence  of  the  witness,  as  manifested  by  his  examina- 
tion, and  upon  his  opportunities  to  ascertain  all  the  circumstances 
that  should  properly  affect  any  conclusion  reached.  It  will  also  depend, 
in  part,  upon  the  degree  of  the  mental  unsoundness  of  the  person  whose 
condition  is  the  subject  of  inquiry;  for,  his  derangement  may  be  so  total 
and  palpable  that  but  slight  observation  is  necessary  to  enable  persons 
of  ordinary  understanding  to  form  a  reasonably  accurate  judgment  as 
to  his  sanity  or  insanity ;  in  other  cases,  the  symptoms  may  be  of  such 


460  Cases  on  Evidence 

an  occult  character  as  to  require  the  closest  scrutiny  and  the  highest 
skill  to  detect  the  existence  of  insanity. 

The  truth  is,  the  statement  of  a  non-professional  witness  as  to  the 
sanity  or  insanity,  at  a  particular  time,  of  an  individual,  whose  appear- 
ance, manner  and  motions  of  another  person,  or  which  a  correct  idea 
cannot  well  be  communicated  in  words  to  others,  without  embodying, 
more  or  less,  the  impressions  or  judgment  of  the  witness.     But,  in  a 
substantial  sense,  and  for  every  purpose  essential  to  a  safe  conclusion, 
the  mental  condition  of  an  individual,  as  sane  or  insane,  is /a  fact,  and 
the  expressed  opinion  of  one  who  has  had  adequate  opportunities  to 
observe  his  conduct  and  appearance  is  but  the  statement  of  a  fact;  not. 
indeed,  a  fact  established  by  direct  and  positive  proof,  because  in  most, 
if  not  all  cases,  it  is  impossible  to  determine,  with  absolute  certainty,  the 
precise  mental  condition  of  another;  yet,  being  founded  on  actual  ob- 
servation, and  being  consistent  with  common  experience  and  the  ordi- 
nary manifestations  of  the  condition  of  the  mind,  it  is  knowledge,  so  far 
as  the  human  intellect  can  acquire  knowledge  upon  such  subjects.     In- 
sanity is  a  "disease  of  the  mind  which  assumes  as  many  and  various 
forms  as  there  are  shades  of  difference  in  the  human  character."    It.  is, 
as  has  been  well  said,  "a  condition,  which  impresses  itself  as  an  aggre- 
gate on  the  observer,"  and  the  opinion  of  one,  personally  cognizant  of 
the  minute  circumstances  making  up  that  aggregate,  and  which  are  de- 
tailed in  connection  with  such  opinion,  is,  in  its  essence,  only  a  fact  "at 
short-hand."     i  Wharton  &  Stille's  Med.  Juris.,  sec.  257.    This  species 
of  evidence  should  be  admitted,  not  only  because  of  its  intrinsic  value, 
when  the  result  of  observation  by  persons  of  intelligence,  but  from 
necessity.    We  say  from  necessity,  because  a  jury  or  court,  having  had 
no  opportunity  for  personal  observation,  would  otherwise  be  deprived 
of  the  knowledge  which  others  possess ;  but,  also  because,  if  the  witness 
may  be  permitted  to  state — ^as  undoubtedly,  he  would  be,  where  his 
opportunities  of  observation  have  been  adequate — "that  he  has  known 
the  individual  for  many  years;  has  repeatedly  conversed  with  him  and 
heard  others  converse  with  him;  that  the  witness  had  noticed  that  in 
these  conversations  he  was  incoherent  and  silly;  that  in  his  habits  he 
was  occasionally  highly  pleased  and  greatly  vexed  without  a  cause ;  and 
that,  in  his  conduct  he  was  wild,  irrational,  extravagant,  and  crazy, — 
what  would  this  be  but  to  declare  the  judgment  or  opinion  of  the  wit- 
ness of  what  is  incoherent  or  foolish  in  conversation,  what  reasonable 
cause  of  pleasure  or  resentment,  and  what  the  indicia  of  sound  or  dis- 
ordered intellect? 

Affirmed. 


Opinion  Evidence  461 

COMMONWEALTH  v.  STURTIVANT. 
iij  Mass.  122.     (1874) 

Indictment  for  the  murder  of  Simeon  Sturtivant,  at  Halifax,  in  the 
county  of  Plymouth,  on  February  15,  1874.  Trial  before  Wells  and 
Ames,  JJ.,  who  allowed  a  bill  of  exceptions  in  substance  as  follows : 

I.  There  was  evidence  tending  to  show  that  Simeon  Sturtivant  and 
Mary  Buckley,  his  housekeeper,  were  last  seen  alive  about  half  past  six 
o'clock  on  Sunday  evening,  February  15,  1874,  and  that  Thomas  Sturti- 
vant was  last  seen  alive  about  half  past  four  o'clock  of  the  afternoon 
of  the  same  day ;  that  about  half  past  seven  o'clock  on  the  morning  of 
the  1 6th,  Mary  Buckley  was  found  lying  dead  in  a  field  about  thirty- 
five  rods  from  the  dwelling-house  of  the  Sturtivants,  and  soon  after- 
wards the  dead  body  of  Thomas  was  found  lying  in  one  room  of  the 
house,  and  that  of  Simeon  in  another  room;  that  between  these  rooms 
was  another  large  room,  all  the  doors  of  which  were  closed. 

The  only  evidence  tending  to  show  who  was  the  murderer  of  either 
of  these  persons  was  circumstantial.     The  government  contended  that 
the  evidence  tended  to  show  that  the  three  persons  were  killed  by  the  ' 
same  person,  with  the  same  weapon,  at  the  same  time. 

Endicott,  J.  There  was  evidence  tending  to  show  that  three  per- 
sons, Simeon  Sturtivant,  Thomas  Sturtivant  and  Mary  Buckley,  were 
killed  at  the  same  time,  by  the  same  weapon. 

The  principal  exception  is  to  the  competency  of  the  evidence  in 
regard  to  the  blood-stain.  The  question  here  is  whether  a  witness,  who 
is  familiar  with  blood  and  has  examined,  with  a  lens,  a  blood-stain 
upon  a  coat,  when  it  was  fresh,  can  also  testify  that  the  appearance 
then  indicated  the  direction  from  which  it  came,  and  that  it  came  from 
below  upward,  although  he  has  never  experimented  with  blood  or 
other  fluid  in  this  respect.  The  witness  had  previously  testified  to  its 
appearance  at  the  time  he  examined  it,  and  to  the  fact  that  at  the  trial 
it  was  not  in  the  same  condition,  some  of  the  blood  having  been 
rubbed  off. 

The  exception  to  the  general  rule  that  witnesses  cannot  give  opinions, 
is  not  confined  to  the  evidence  of  experts  testifying  on  subjects  re- 
quiring special  knowledge,  skill  or  learning;  but  includes  the  evidence 
of  common  observers,  testifying  to  the  results  of  their  observation  made 
at  the  time  in  regard  to  common  appearances  or  facts,  and  a  condition 
of  things  which  cannot  be  reproduced  and  made  palpable  to  a  jury. 
Such  evidence  has  been  said  to  be  competent  from  necessity,  on  the 


462        -  Cases  on  Evidence 

same  ground  as  the  testimony  of  experts,  as  the  only  method  of  proving 
certain  facts  essential  to  the  proper  administration  of  justice.  Nor  is 
it  a  mere  opinion  which  is  thus  given  by  a  witness,  but  a  conclusion  of 
fact  to  which  his  judgment,  observation,  and  common  knowledge  has 
led  him  in  regard  to  a  subject  matter  which  requires  no  special  learning 
or  experiment,  but  which  is  within  the  knowledge  of  men  in  general. 
Every  person  is  competent  to  express  an  opinion  on  a  question  of 
identity  as  applied  to  persons,  things,  animals  or  handwriting,  and  may 
give  his  judgment  in  regard  to  the  size,  color,  weight  of  objects,  and 
may  estimate  time  and  distances.  He  may  state  his  opinion  in  regard 
to  sounds,  their  character,  from  what  they  proceed,  and  the  direction 
from  which  they  seem  to  come.  State  v.  Shinborn,  46  N.  H.  497.  The 
correspondence  between  boots  and  foot-prints  is  a  matter  requiring  no 
peculiar  knowledge,  and  to  which  any  person  can  testify.  Common- 
wealth V.  Pope,  103  Mass.  440.  So  a  person  not  an  expert  may  give 
his  opinion  whether  certain  hairs  are  human  hairs.  Commonwealth  v. 
Dorsey,  103  Mass.  412.  And  a  witness  may  state  what  he  understood 
by  certain  "expressions,  gestures  and  intonations,"  and  to  whom  they 
were  applied ;  otherwise  the  jury  could  not  fully  understand  their 
meaning.    Leonard  v.  Allen,  11  Cush.  241. 

In  this  connection  may  be  noticed  a  large  class  of  cases,  where,  from 
certain  appearances  more  or  less  difficult  to  describe  in  words,  wit- 
nesses have  been  permitted  to  state  their  conclusions  in  relation  to  in- 
dications of  disease  or  health,  and  the  condition  or  qualities  of  animals 
or  persons.  As  when  a  witness  testifies  that  a  horse's  foot  appeared  to 
be  diseased,  he  states  a  matter  of  fact  open  to  the  observation  of  com- 
mon men.  Willis  v.  Quimby,  31  N.  H.  485.  And  it  is  proper  for  a 
witness  to  give  his  opinion  that  a  horse  appeared  to  be  sulky  and  not 
frightened  at  the  time  of  an  accident ;  Whittier  v.  Franklin,  46  N.  H. 
23 ;  or  he  may  testify  as  to  the  qualities  and  appearance  of  a  horse. 
State  V.  Avery,  44  N.  H.  392.  In  Currier  v.  Boston  &  Maine  Railroad, 
34  N.  H.  498,  it  is  said  that  the  question  whether  there  was  hard  pan 
in  an  excavation  does  not  ask  for  an  opinion,  but  seeks  for  facts  within 
the  knowledge  of  the  witness,  and  of  which  the  knowledge  may  be 
obtained  by  common  observation.  It  is  competent  for  a  witness  to 
testify  to  the  condition  of  health  of  a  person,  and  that  he  is  ill  or 
disabled,  or  has  a  fever,  or  is  destitute  and  in  need  of  relief ;  Parker 
v.  Boston  &  Hingham  Steamboat  Co.,  109  Mass.  449;  Wilkinson  v. 
Mosely,  30  Ala.  562 ;  Barker  v.  Coleman,  35  Ala.  221 ;  Autauga  County 
V.  Davis,  32  Ala.  703 ;  and  one  may  testify  that  another  acted  as  if  she 
felt  very  sad.     Culver  v.  Dwight,  6  Gray,  444.     So  those  who  have 


Opinion  Evidence    ,  463 

observed  the  relations  and  conduct  of  two  persons  to  each  other  may 
testify  whether  in  their  opinion  one  was  attached  to  the  other.  And 
in  M'Kec  v.  Nelson,  4  Cowen,  355,  the  court  say,  "The  opinion  of 
witnesses  on  this  subject  must  be  derived  from  a  series  of  instances 
passing  under  their  observation,  which  yet  they  never  could  detail  to 
'a  jury."  See  Trelawney  v.  Colman,  2  Stark.  191.  A  witness  may  also 
give  his  judgment  whether  a  person  was  intoxicated  at  a  given  time: 
People  V.  Eastwood,  4  Kernan  562 ;  or  whether  he  noticed  any  change 
in  the  intelligence  or  understanding,  or  any  want  of  coherence  in  the 
remarks  of  another.  Barker  v.  Comins,  no  Mass.  477.  Nash  v. 
Hunt,  116  Mass.  237. 

In  Steamboat  Clipper  v.  Logan,  18  Ohio  375,  it  was  held  that  a 
person  who  had  been  a  captain  and  engineer  of  a  steamboat,  having 
examined  a  boat  after  an  injury  by  collision,  may  state  his  opinion  as 
to  the  direction  from  which  the  boat  was  struck  at  the  time  of  the 
collision.  There  was  no  evidence  that  the  witness  had  any  special 
knowledge  in  regard  to  collisions,  through  observation  or  experiment ; 
and  the  court  does  not  rest  the  decision  on  the  ground  that  the  witness 
was  an  expert;  but  says  there  is  "no  objection  to  calling  these  men 
experts,  if  the  name  will  render  their  testimony  more  unexceptionable; 
but  it  is  not  true  as  a  legal  proposition  that  no  one  but  an  expert  can 
give  an  opinion  to  a  jury.  From  the  necessity  of  the  case,  testimony 
must  occasionally  be  a  compound  of  fact  and  opinion."  And  the  court 
say  that  they  can  give  no  better  illustration  of  their  meaning  than  by 
the  use  of  the  language  in  M'Kee  v.  Nelson,  a  portion  of  which  is 
quoted  above. 

It  would  also  seem  to  be  within  the  range  of  common  knowledge  to 
observe  and  understand  those  appearances,  in  marks  or  stains  caused 
by  blood  or  other  fluids,  which  indicate  the  direction  from  which  they 
came,  if  impelled  by  force. 

The  competency  of  this  evidence  rests  upon  two  necessary  conditions : 
first,  that  the  subject  matter  to  which  the  testimony  relates  cannot  be 
reproduced  or  described  to  the  jury  precisely  as  it  appeared  to  the  wit- 
ness at  the  time;  and  second,  that  the  facts  upon  which  the  witness  is 
called  to  express  his  opinion,  are  such  as  men  in  general  are  capable 
of  comprehending  and  understanding. 

When  these  conditions  have  been  complied  with  or  fulfilled  in  a  given 
case,  the  court  must  then  pass  upon  the  question,  whether  the  witness 
had  the  opportunity  and  means  of  inquiry,  and  was  careful  and  in- 
telligent in  his  observation  and  examination.  It  is  not  the  mere  qual- 
ication  of  the  witness  but  the  extent  and  thoroughness  of  his  exam- 


464  Cases  on  Evidence 

ination  into  the  specific  facts  to  which  the  inquiry  relates,  and  the 
general  character  of  those  facts,  as  affording  to  one,  having  his  oppor- 
tunity to  judge,  the  requisite  means  to  form  an  opinion. 

In  the  case  at  bar  the  admission  of  the  evidence  by  the  court  involved 
the  decision:  i.  That  the  stain  was  not  in  the  same  condition,  and 
did  not  exhibit  the  same  appearance  at  the  trial  as  it  did  when  examined 
by  the  witness  and  cannot  be  reproduced  to  the  jury;  upon  this  as  a 
matter  of  fact  there  is  no  question;  2.  That  the  stain  might  in  itself 
furnish  indications  from  wliat  direction  it  came,  capable  of  being  ob- 
served by  a  witness,  who  though  familiar  with  blood  and  its  qualities, 
had  not  made  or  seen  experiments  made  with  it  or  other  fluids  in  this 
respect ;  and  3.  That  the  witness  had  made  that  thorough,  careful  and 
intelligent  observation  of  the  appearances,  which  would  entitle  him  to 
testify.  We  must  take  the  decision  of  the  court  on  this  last  point  10  be 
conclusive. 

Whether  the  reasons  the  witness  gave  for  his  opinion  of  the  direction 
of  the  stain  were  sound  or  unsound,  does  not  affect  the  question  of 
competency,  and  of  course  the  defendant  had  full  opportunity  to  test 
him  by  cross-examination,  or  to  show  by  evidence  or  argument  that 
his  reasons  were  unsound. 

We  cannot  say  that  such  a  witness,  familiar  with  blood,  its  properties 
and  appearance,  with  his  opportunity  to  examine  and  the  actual  ex- 
amination made  by  him,  might  not  form  and  testify  to  a  reliable  opinion 
as  to  the  direction  in  which  the  blood  moved  in  making  the  elongated 
stain,  although  he  had  never  made  actual  experiments  of  that  kind; 
and  we  see  no  ground  for  sustaining  this  exception  to  the  admission  of 
the  evidence. 

Exceptions  overruled. 


Opinion  Evidence  465 

VINTON  V.  PECK. 
14  Mich.  287.     (1866) 

Campbell,  J.  Peck  sued  Vinton  upon  a  promissory  note,  dated 
June  2nd,  1862  and  payable  three  months  after  date  to  the  order  of 
Z.  H.  Bullard,  who  endorsed  it  to  Peck. 

Vinton,  upon  the  trial,  set  up  in  defense  that  the  note  was  either 
altered  or  forged,  claiming  he  gave  no  note  for  more  than  eight  dollars, 
whereas  the  note  sued  on  was  for  eighty.  One  George  T.  Clark  was 
called  for  Peck,  and  swore  that  he  had  been  a  Conveyancer  and  Notary 
Public  for  twenty-five  years,  and  was  familiar  with  Vinton's  hand- 
writing, and  that  the  note  was  genuine.  He  was  then  asked  whether, 
in  his  opinion,  the  word  eight  had  been  altered  to  eighty  since  its  ex- 
ecution. This  was  objected  to,  and  the  objection  overruled,  and  an 
exception  taken.  He  stated  tliat  he  thought  it  had  not  been  altered,  and 
on  cross-examination  stated  the  "y"  could  not  have  been  added,  because 
of  its  relation  to  the  letters.  This  testimony  was  proper.  The  witness 
was  engaged  in  a  business  which  would  be  quite  apt  to  familiarize  him 
with  all  the  ordinary  appearances  of  writings,  and  the  addition  of  a 
letter,  after  a  document  has  been  finished,  is  so  generally  adapted  to 
give  it  a  peculiar  and  recognizable  appearance,  that  no  great  amount  of 
experience  would  be  necessary  to  detect  it  in  ordinary  cases.  The 
value  of  a  witness's  belief  must  depend  upon  circumstances,  but  it  is 
proper  to  go  to  the  jury  like  other  questions  upon  the  genuineness  of 
writings.  It  is  very  true  that  the  jury  may  examine  the  paper  for  them- 
selves, and  that  opinions  are  not  usually  admissible  where  the  jury  can 
form  their  own  conclusions  unaided.  But  we  do  not  think  it  would  be 
safe  in  this  country  to  adopt  a  rule  which  assumes  such  a  degree  of 
knowledge  and  skill  among  jurors. 

It  is  also  assigned  as  error  that  several  witnesses  were  allowed  to 
compare  the  note  in  suit  with  the  appeal  bond  and  affidavit  on  file  in 
the  cause,  which  were  admitted  to  be  signed  by  Vinton.  It  is  claimed 
that  they  were  not  shown  to  be  experts.  In  proving  handwriting  in 
general  there  is  no  rule  which  requires  any  particular  amount  of  skill 
in  the  witness.  Any  one  who  has  had  the  proper  facilities,  and  who 
can  swear  to  a  knowlege  of  the  handwriting  in  question,  has  al- 
ways been  admitted.  There  are  undoubtedly  questions  presented  at 
times,  which  require  greater  skill  than  others,  but  such  cases  stand  on 
their  own  grounds.  It  is  a  matter  of  common  experience  that  all 
persons  who  can  write  at  all  can  attain  some  familiarity  with  the  hand- 


466  Cases  on  Evidence 

writing  of  others,  and  we  can  find  no  test  which  would  be  at  all  prac- 
ticable, except  that  of  leaving  their  skill  and  capacity  to  be  determined 
by  the  jury  who  hear  them  examined. 

A  more  serious  question  is,  whether  the  comparison  here  resorted  to 
was  admissible  at  all.  It  has  very  commonly  been  said  that  a  witness 
must  obtain  his  knowledge  of  handwriting  by  seeing  the  party  write,  or 
from  papers  in  his  own  possession  which  he  knows  to  be  genuine,  by 
recognition  or  dealing  mutually  had  on  their  credit.  Proof  by  com- 
parison of  hands  on  the  trial  has  not  always  been  deemed  competent, 
and  there  are  many  authorities  which  deny  its  admissibility  at  all.  Upon 
a  subject  which  has  been  so  much  discussed,  and  upon  which  there  is 
so  wide  a  variance  of  opinion,  we  think  the  safest  course  is  to  satisfy 
ourselves  concerning  the  principles  involved,  and  frame  our  conclusions 
accordingly. 

It  has  never  been  required  that  a  witness  should  have  seen  any  par- 
ticular number  of  specimens  or  acts  of  handwriting.  On  the  contrary 
seeing  a  person  write  once,  has  been  held  sufficient. 

In  the  case  of  ancient  documents  proof  by  comparison  has  always 
been  permitted,  although  the  comparison  can  only  be  made  by  proving 
the  genuineness  of  papers  not  involved  in  the  cause.  Doe  v.  Tarver, 
Ry.  and  M.  141.  The  right  to  establish  handwriting  by  comparison  in 
other  cases  has  been  denied  on  two  grounds :  first,  because  the  specimens 
for  comparison  may  be  unfairly  selected,  and  second,  because  proof  of 
the  genuineness  of  the  specimens  would  raise  collateral  issues  which 
would  encumber  the  case,  and  which  the  party  could  not  be  supposed  to 
be  ready  to  meet.  Accordingly  the  rule  has  been  inflexibly,  and  we 
think  justly  settled,  that  disputed  papers  which  do  not  belong  in  the 
cause,  and  are  not  involved  in  the  issue,  cannot  have  their  genuineness 
made  a  question  of  inquiry  in  the  cause,  and  cannot  therefore  be  made 
a  basis  of  comparison  for  either  witnesses  or  jury.  Doe  v.  Newton,  5 
Ad.  &  El.  514;  Griffits  v.  Ivery,  11  Id.  322;  Hughes  v.  Rogers,  8  M.  & 
W.  123 ;  Bromage  v.  Rice,  7  C.  &  P.  548.  There  is  one  English  case  in 
which  the  Court  of  Queen's  Bench  was  equally  divided  upon  the  ques- 
tion whether,  after  an  attesting  witness  had  in  his  testimony  stated 
several  specimens  of  his  signature  (including  his  attestation)  to  be 
genuine,  an  expert  might  be  allowed  to  compare  them  all  (relevant  as 
well  as  irrelevant)  to  ascertain  whether  the  attestation  was  genuine. 
The  course  of  the  discussion  on  the  bench  elicited  the  most  complete 
investigation  of  the  various  methods  of  proving  handwriting  which  is 
to  be  found  in  the  books,  and  while  it  seems  dangerous  to  allow  com- 
parison by  disputed  documents  and  signatures,  the  reasons  for  allowing 


Opinion  Evidence  467 

it  among  those  not  disputed  are  very  forcibly  set  forth, — Doe  v.  Sucker- 
more,  5  A.  &  E.  733.  Where  papers  are  already  in  the  case,  it  is  held 
almost  if  not  quite  universally,  that  the  jury  may  make  the  comparison 
for  themselves,  i  Greenl.  Ev.  578.  Mr.  Greenleaf  gives  it  as  his  opin- 
ion that  this  comparison  may  be  made  with  or  without  the  aid  of  ex- 
perts. In  Doe  V.  Newton  (before  cited)  it  is  said  that  the  court  should 
enter  into  this  inquiry  with  the  jury,  but  it  is  doubtful  whether  it  was 
meant  to  intimate  that  witnesses  should  be  examined  for  that  purpose. 
The  general  English  rule  would  seem  to  be  that  the  jury  must  form 
their  own  opinions  among  themselves  from  the  comparison.  And  the 
English  authorities  agree  in  saying  that  the  objection  that  a  jury  may 
be  illiterate  cannot  now  have  any  weight.  But  it  cannot  be  denied  that, 
even  among  intelligent  men,  there  is  much  difference  in  regard  to  the 
capacity  of  forming  an  accurate  judgment  by  comparison,  W'hile  all 
persons  who  can  read  and  write  can  form  some  sort  of  an  opinion. 
Experts  can  certainly  aid  a  jury  very  much  in  these  inquiries,  and,  if 
any  are  admitted,  the  degree  of  their  skill  cannot  be  nicely  measured. 
But,  as  we  have  already  remarked,  we  think  the  presumption  cannot 
safely  be  raised  that  all  jurors  here  can  be  qualified  to  form  opinions 
for  themselves  upon  questions  of  handwriting,  and  while,  if  capable, 
they  may  properly  make  comparison,  it  is  safer  and  better,  we  think,  to 
make  sure  that  they  receive  such  light  as  is  accessible. 

Where,  as  in  the  present  case,  the  papers  used  as  means  of  comparison 
are  a  part  of  the  records  in  the  cause,  and  undisputed,  it  is  held  by  the 
authorities  cited  that  the  jury  can  compare  them  and  that  a  witness  mav 
also  use  them,  to  form  an  opinion  concerning  the  liandwriting ; — and  no 
objection  can  arise  on  the  ground  that  they  can  have  been  specially 
selected  as  a  standard.  We  should  feel  disposed  to  say — had  not  the 
doctrine  become  almost  venerable  from  tnuch  repetition — ^that  there  is 
nothing  in  ordinary  experience  which  could  lead  any  one  to  suppose 
that  a  person  cannot  form  a  better  judgment  of  resemblances  in  writing 
from  having  the  specimens  before  him,  than  from  any  mere  effort  of 
memory.  And  we  feel  constrained  to  hold  that  a  comparison  of  hands 
by  witnesses,  where  there  is  an  undisputed  standard  in  the  cause,  or 
where  documents  are  fairly  before  the  jury  upon  the  issues,  is  al- 
lowable. 

There  is  no  error  in  the  judgment,  and  it  must  be  affirmed. 

Christiancy  and  C001.EY,  JJ.  concurred. 


468  Cases  on  Evidence 

HAMMOND  V.  MARIAN. 
54  N.  Y.  398.    (1873) 

Appeal  by  Allen  C.  \''arian,  one  of  the  defendants,  from  judgment  of 
the  General  Term  of  the  Supreme  Court  in  the  sixth  judicial  district, 
in  favor  of  the  plaintiff,  entered  upon  an  order  denying  a  motion  for  a 
new  trial,  and  directing  judgment  on  a  verdict. 

This  action  was  brought  on  a  promissory  note,  dated  March  10,  1863, 
for  $125,  purporting  to  have  been  made  by  the  defendants  jointly,  pay- 
able nine  months  after  date  to  Charles  Ross  or  bearer. 

LoTT,  Ch.  C.    The  note  in  question  was  properly  admitted  in  evidence. 

Proof  was  given  by  the  plaintiff  of  an  admission  by  the  defendant, 
Allen  C.  Varian,  tending  to  show,  and  sufficient,  if  uncontradicted,  to 
prove  that  he  had  made  it,  and  other  evidence  was  given  of  facts  and 
circumstances  in  relation  to  its  delivery  to  Ross,  the  payee,  from  which 
it  might,  in  connection  with  the  evidence  of  such  admission,  be  inferred 
that  it  was  signed  by  him.  There  can,  therefore,  be  no  question  of  the 
sufficiency  of  the  proof  to  warrant  the  note  to  be  read  to  the  jury  at 
the  time  it  was  offered  and  introduced. 

After  its  introduction,  one  witness  who  had  seen  the  defendant  write 
his  name  once,  and  another  who  had  never  seen  him  write,  but  who 
had  held  his  note,  acknowledged  and  conceded  to  be  genuine,  were  per- 
mitted to  express  their  opinion  and  belief,  against  the  defendant's  ex- 
ception, whether  the  signature  was  his.  The  objection  taken  to  the 
testimony  was,  that  they  had  not  shown  themselves  sufficiently  ac- 
quainted with  the  defendant's  handwriting,  to  testify  as  to  its  genuine- 
ness. This  is  not  tenable.  They  had  some  means,  although  slight.,  of 
enabling  them  to  judge  whether  the  signature  was  that  of  the  defendant, 
yet  sufficient,  in  their  belief,  to  express  an  opinion  in  reference  thereto. 
The  extent  of  their  knowledge,  and  the  weight  or  effect  to  be  given  to 
their  opinion,  were  proper  matters  for  the  consideration  of  the  jury. 
(See  Greenleaf  on  Evidence,  vol.  i,  sec.  577.) 

Judgment  reversed  on  other  grounds. 


Opinion  Evidence  469 

WILSON  V.  VANLEER. 
121  Pa.  St.  372.     (1889) 

On  August  22,  1885,  an  issue  devisavit  vel  non,  wherein  Joseph 
VanLeer  and  Caroline,  his  wife,  in  right  of  said  CaroUne,  were  plain- 
tiffs, and  Sidwell  T.  Wilson  and  Needham  M.  Wilson,  executors  of 
the  will  of  Needham  Wilson,  were  defendants,  was  formed  to  try 
whether  or  not  a  certain  testamentary  paper  was  a  codicil  to  the  last 
will  and  testament  of  Needham  Wilson.  The  issue  had  been  directed 
by  the  Orphans'  Court  upon  an  appeal  by  said  executors  from  the  decree 
of  the  register  of  wills,  admitting  said  paper  to  probate. 

Cornelius  Carman,  called  by  the  plaintiffs,  testified  that  he  was  a 
brother  of  Caroline  VanLeer,  and  had  known  Needham  Wilson  from 
his  own  boyhood;  that  when  the  witness  was  ten  or  eleven  years  old, 
which  was  thirty-two  years  before  the  trial,  he  was  living  with  Mr. 
Wilson  and  saw  him  write  two  or  three  letters  to  the  witness's  father ; 
that  in  October,  1865,  the  witness  was  with  Mr.  Wilson  at  a  hotel  in 
Lancaster,  and  saw  him  write  a  memorandum  of  articles  he  wished 
to  purchase  and  indorse  his  name  on  a  check,  and  since  then  witness 
had  not  seen  Mr.  Wilson  write.  The  witness  was  subjected  to  a  rigid 
cross-examination,  and  testified  to  his  belief  that  the  signature  and  the 
whole  of  the  paper  shown  him  was  in  the  handwriting  of  Needliam 
Wilson. 

Mitchell,  J.  The  competency  of  Cornelius  Carman  was  in  the  first 
instance  clearly  a  matter  for  the  court,  and  no  subsequent  evidence  hav- 
ing raised  any  dispute  of  fact  upon  it,  the  learned  judge  was  right  in 
saying  that  the  court  was  the  sole  judge  of  competency,  and  refusing  to 
allow  the  jury  to  review  the  ruling.  Had  the  facts  upon  which  the 
judge  held  him  prima  facie  competent  been  denied  or  contradicted,  it 
might  have  been  proper  to  submit  the  whole  matter  to  the  final  decision 
of  the  jury :  Lee  v.  Welsh,  i  W.  N.  453 ;  but  there  was  no  such  con- 
flict as  made  that  course  necessary. 

The  learned  judge  was  also  within  the  line  of  authorities,  in  holding 
that  Carman  had  sufficient  knowledge  of  Wilson's  handwriting  to  make 
him  competent  to  testify  concerning  it.  It  is  said  to  be  sufficient  if 
"the  witness  has  seen  the  party  write  but  once,  and  then  only  his  name: 
I  Greenl.  Ev.  sec.  577;  and  probably  no  higher  standard  can  be  fixed 
for  a  definite  rule,  though,  considering  the  untrustworthiness  of  opin- 
ions on  handwriting  in  general  (see  note  of  Chief  Justice  Redfield  to 
his  edition  of  Greenleaf,  vol.  i,  sec.  578),  such  evidence  ought  to  be 


470  Cases  on  Evidence 

guarded  with  great  caution.  Nor  in  the  nature  of  things  is  it  possible  to 
fix  any  arbitrary  limit  of  time  within  which  the  witness  must  have  seen 
the  writing  done.  That  must  depend  on  his  intelligence,  his  habit  of 
observation  of  such  matters,  the  apparent  strength  and  confidence  of 
his  memory,  etc.,  which  must  be  passed  upon  in  the  first  instance  by  the 
trial  judge.  Carman's  knowledge  seems  not  only  to  have  been  ex- 
tremely stale,  but  of  the  narrowest  extent,  and  if  the  learned  judge  had 
held  that  it  was  too  remote  and  unreliable  to  qualify  him,  we  should  not 
have  been  disposed  to  disagree  with  him.  But  the  matter  was  within 
his  discretion,  and  his  conclusion  was,  as  already  said,  within  the  line  of 
the  authorities.  It  was  therefore  for  the  jury  and  not  for  us  to  deter- 
mine the  weight  to  which  the  testimony  should  be  entitled.  The  assign- 
ments of  error  in  relation  to  Carman's  testimony  are  therefore  not 
sustained. 
Judgment  reversed,  and  venire  de  novo  awarded  on  other  grounds. 


TOWER  V.  WHIP. 
53  W.  Va.  158.    (1903) 


Brannon,  J.  This  was  an  action  of  debt  tried  before  a  special 
judge,  on  a  negotiable  note  in  the  Circuit  Court  of  Mineral  county, 
brought  by  M.  C.  Totten  against  Sandford  Whip,  resulting  in  a  verdict 
and  judgment  for  the  defendant,  from  which  he  has  sued  out  a  writ 
of  error. 

The  defendant  pleaded  nil  debet  and  filed  a  plea  No.  3  saying  that 
"he  did  not  make  or  sign  the  notes  sued  on,"  which  were  verified  by 
affidavit. 

The  vital  question  in  this  case  is,  did  Whip  make  the  note?  He 
denied  doing  so  by  pleas  i  and  3.  On  trial  the  plaintiff  offered  a 
witness  as  an  expert,  and  proposed  that  he  inspect  Whip's  signature  to 
the  affidavits  of  the  four  pleas  filed  by  him  and  the  signature  of  Whip 
on  the  note  in  suit,  and  say  whether  the  same  person  made  them  and 
proposed  to  prove  by  him  that  in  his  opinion  the  same  person  made 
all  the  signatures ;  but  the  evidence  was  rejected.  In  West  Virginia  it 
is  settled  law  that  the  genuineness  of  an  instrument  cannot  be  proven 
or  disproven  by  comparison  with  other  writings ;  as  a  general  rule  com- 
parison of  handwritings  is  not  allowed.  State  v.  Koontz,  31  W.  Va. 
127.     I  never  could  see  the  soundness  of  this  rule;  but  it  was  well 


Opinion  Evidence  471 

settled  common  law  in  England  until  statute  wiped  it  away,  and  gen- 
erally, but  not  everywhere,  prevailed  in  the  United  States.  It  came  to 
this  State  from  Virginia.  We  have  always  regarded  this  the  Virginia 
rule;  but  if  so,  Hanriot  v.  Sherwood,  82  Va.  i,  has  overruled  it.  But 
concede  such  to  be  the  law  in  West  Virginia,  yet,  as  the  Supreme  Court 
said  in  Moore  v.  United  States,  91  U.  S.  270,  "the  general  rule  of  the 
common  law  disallowing  a  comparison  of  handwriting  as  proof  of  sig- 
nature has  exceptions  equally  as  well  settled  as  the  rule  itself.  One  of 
these  exceptions  is,  that  if  a  paper  admitted  to  be  in  the  handwriting 
of  the  party,  or  to  have  been  subscribed  by  him,  is  in  evidence  for  some 
other  purpose  in  the  cause,  the  signature  or  paper  in  question  may  be 
compared  with  it  by  the  jury."  The  disputed  paper  "May  be  compared 
with  it  by  the  jury."  The  disputed  paper  "May  be  compared  with  other 
writings  by  such  person  proved  or  admitted  to  be  genuine  and  already 
properly  before  the  court  for  other  purposes,  either  as  evidence  in  the 
case  or  as  part  of  the  record."  15  Am.  &  Eng.  Encyc.  of  L.  266.  The 
defense  on  the  trial  stated  that  it  was  not  admitted  that  the  signatures 
to  the  pleas  were  in  Whip's  handwriting  but  it  was  not  denied.  And  is 
it  not  presumptive,  in  the  case  of  a  natural  person,  that  a  signature  to 
a  plea  filed  in  court  by  him  is  his  own,  especially  as  it  is  certified  to 
have  been  subscribed  by  him  before  the  clerk?  And  he  proffered  it  as 
his,  and  it  would  be  prima  facie  his,  until  shown  not  to  be  his.  It 
would  be  diflferent  with  a  paper  not  in  the  case.  Here  it  was  part  of 
the  record.  Could  it  be  questioned  that  the  jury  might  compare  the 
note  with  the  pleas?  I  think  not.  But  our  question  is,  can  an  expert 
make  a  comparison  of  those  papers  and  give  his  opinion?  Yes,  he  can, 
because,  if  you  once  settle  that  a  jury  can  do  so,  it  is  a  subject  of  expert 
evidence.  If  the  papers  are  such  as  to  allow  a  comparison,  expert  evi- 
dence may  be  applied  to  them.  Vinton  v.  Peck,  14  IVIich.  287,  is  author- 
ity not  only  to  allow  comparison  with  other  papers  already  in  the  case, 
but  also  to  show  that  experts  may  be  called  to  make  the  comparison,  and 
that  it  is  better  that  the  jury  have  the  aid  of  experts,  as  few  of  us  are 
competent  to  do  so  with  success,  i  Greenl.  Ev.  sec.  578  thus  states  the 
law :  "Where  other  writings  admitted  to  be  genuine  are  already  in  the 
case;  here  the  comparison  may  be  made  by  the  jury  with  or  without  the 
aid  of  experts."  In  Hard  wick  v.  Sherwood,  82  Va.  i,  expert  evidence 
to  make  such  comparison  is  held  proper.  In  Springer  v.  Hall,  83  Mo. 
693.  it  is  held  that  such  expert  evidence  may  be  used  to  compare.  This 
case  is  cited  by  the  defense  to  show  that  comparison  cannot  be  made 
with  paper  made  after  suit,  but  there  the  defendant  proposed  to  use  his 
signature  to  his  own  pleadings  to  prove  that  he  did  not  make  the  note. 


472         ■  Casus  on  Evidence 

Any  amount  of  law  can  be  cited  to  show  that  experts  may  compare 
writings  and  give  their  opinions.  Rogers,  Expert  Test.,  sec.  133;  State 
V.  Thompson,  6  Am.  St.  R.  172.  Much  case  law  is  cited  to  show  that 
expert  testimony  is  weak  and  unreliable.  This  may  or  may  not,  be  so. 
Courts  differ  as  to  this.  Many  regard  it  valuable,  as  it  surely  is  in 
certain  cases.  We  pass  no  opinion,  as  its  weight  is  for  the  jury.  Being 
admissible,  we  are  not  able  to  say  that  it  would  not  have  had  weight, 
and  if  such  evidence  might  have  been  beneficial  to  the  plaintiff,  its  re- 
jection is  error,  as  he  was  entitled  to  place  before  the  jury  all  admis- 
sible evidence.    Kerr  v.  Lunsford,  31  W.  Va.  675. 

Reversed. 


MORRISON  v.  PORTER. 
55  Minn.  425.     (1886) 


The  plaintiff  brought  this  action  in  the  district  court  for  Hennepin 
county  to  determine  the  defendant's  adverse  claims  to  certain  land,  and 
appeals  from  an  order  by  Lochren,  M.,  refusing  a  new  trial. 

Dickinson,  J.  The  defendant,  the  railroad  corporation,  has  title  to 
the  land  in  controversy  through  a  chain  of  conveyances  running  back 
to  the  plaintiff,  if  in  fact  the  plaintiff  executed  a  certain  deed  of  convey- 
ance in  the  year  i860,  the  execution  of  which  the  plaintiff  disputes. 
The  court  found  that  it  had  been  executed  by  her.  The  first  point  to 
be  considered  arises  upon  the  admission  in  evidence  of  an  instrument 
(Exhibit  Y)  containing  a  signature  of  the  plaintiff  admitted  to  be 
genuine,  to  enable  a  comparison  to  be  made  between  that  signature  and 
the  disputed  signature  in  issue.  Exhibit  Y  being  not  otherwise  relevant 
to  the  issue.  Expert  witnesses  were  allowed  to  give  their  opinions, 
based  upon  such  comparison.  Upon  the  question  thus  presented,  as  to 
whether  a  writing,  admitted  to  be  in  the  hand  of  the  person  whose 
signature  is  in  issue,  may  be  received  in  evidence  for  the  purpose  of 
comparison,  the  authorities  are  so  at  variance  that  we  are  at  liberty  to 
adopt  the  rule  of  evidence  which  seems  to  be  most  consistent  with 
reason,  and  conducive  to  the  best  results.  At  common  law,  and  gen- 
erally in  the  United  States,  it  has  been  the  rule  that  where  other  writ- 
ings, admitted  to  be  genuine,  are  already  in  evidence  for  other  purposes 
in  the  case,  comparison  may  be  made  between  such  writings  and  the 
instrument  in  question.    If  such  a  comparison  is  conducive  to  the  ends 


Opinion  Evidence  473 

of  truth,  and  is  allowable,  there  would  seem  to  be  but  little  reason  for 
refusing  to  allow  a  comparison  with  other  writings  admitted  to  be 
genuine,  although  not  in  evidence  for  other  purposes. 

The  objections  which  have  been  urged  to  receiving  other  instruments, 
for  the  purpose  of  comparison,  have  been  the  multiplying  of  collateral 
issues;  the  danger  of  fraud  or  unfairness  in  selecting  instruments  for 
that  purpose,  from  the  fact  that  handwriting  is  not  always  the  same, 
and  is  affected  by  age,  and  by  the  various  circumstances  which  may 
attend  the  writing;  and  the  surprise  to  which  a  party  against  whom 
such  evidence  is  produced  may  be  subjected.  When  the  writings  pre- 
sented are  admitted  to  be  genuine,  so  that  collateral  issues  are  not  likely 
to  arise,  nor  the  adverse  party  to  be  surprised  by  evidence  which  he  is 
unable  to  meet,  these  objections  seem  to  us  to  be  insufficient  as  reasons 
for  excluding  the  evidence.  If  such  evidence  has  apparent  and  direct 
probative  force,  it  should  not  be  exchided  unless  for  substantial  reasons. 
In  general,  and  from  necessity,  the  authenticity  of  handwriting  must 
be  subject  to  proof  by  comparison  of  some  sort,  or  by  testimony  which 
is  based  upon  comparison,  between  the  writing  in  question  and  that 
which  is  in  some  manner  recognized  or  shown  to  be  genuine.  This  is 
everywhere  allowed,  through  the  opinions  of  witnesses  who  have  ac- 
quired a  knowledge  more  or  less  complete,  of  the  handwriting  of  a 
person,  as  having  seen  him  write,  or  from  acquaintance  with  papers 
authenticated  as  genuine.  In  such  cases  the  conception  of  the  hand- 
writing retained  in  the  mind  of  the  witness  becomes  a  standard  for 
comparison,  by  reference  to  which  his  opinion  is  formed,  and  given  in 
evidence.  It  would  seem  that  a  standard  generally  not  less  satisfactory, 
and  very  often  much  more  satisfactory,  is  afforded  by  the  opportunity 
for  examining  side  by  side  the  writing  in  dispute  and  other  writings  of 
unquestioned  authenticity ;  and  this,  we  think,  is  in  accordance  with  the 
common  judgment  and  experience  of  men.  « 

The  evils  that  may  be  suggested  as  likely  to  arise  from  the  selection 
of  particular  writings  for  the  purposes  of  comparison,  may  be  left,  as 
all  unfair  or  misleading  evidence  must  be,  to  be  corrected  by  other 
evidence,  and  by  the  intelligent  judgment  of  the  court  or  jury.  In  our 
opinion,  such  evidence  is  conducive  to  the  intelligent  ascertaining  of 
the  ttuth,  and  the  receiving  of  it  in  this  case  was  not  error.  We  cite 
authorities  sustaining  this  view,  some  of  which  go  further  in  this  direc- 
tion than  does  our  present  decision.  Tyler  v.  Todd,  36  Conn.  218; 
Moody  V.  Rowell,  17  Pick.  490,  (28  Am.  Dec.  31)  ;  State  v.  Hastings, 
53  N.  H.  452;  Adams  v.  Field,  21  Vt.  256;  State  v.  Ward,  39  Vt  225 ; 
Farmers'  Bank  v.  Whitehill,  10  Serg.  &  R.  no;  Travis  v.  Brown,  43 


474  Cases  on  Evidence 

Pa.  St.  9;  Chance  v.  Indianapolis  &  W,  G.  R.  Co.,  32  Ind.  472;  Ma- 
comber  V.  Scott,  10  Kan.  335 ;  Wilson  v.  Beauchamp,  50  Miss.  24. 

Order  affirmed. 


STATE  V.  FLANDERS. 
38N.H.332-     (1859) 


Indictment,  charging  the  respondent  with  the  crime  of  forgery,  in 
having  altered,  at  Manchester,  in  said  county,  on  the  fourth  day  of 
August,  1857,  a  bond  of  that  date,  in  the  penal  sum  of  forty  thousand 
dollars,  signed  by  himself  as  principal,  and  by  Samuel  Andrews  and 
Luther  Aiken  as  sureties,  given  and  payable  to  Thomas  P.  Webber. 

The  principal  questions  before  the  jury  were  whether  the  signature 
of  Aiken  was  upon  the  bond  when  the  respondent  made  the  alteration; 
the  evidence  being  clear  that  Aiken  never  saw  the  bond  before  it  was 
passed  to  Webber,  except  when  he  signed  it,  and  never  assented  to  any 
alteration  after  it  was  made  and  before  the  respondent  passed  or  at- 
tempted to  pass  the  bond  to  Webber  as  genuine. 

Sawyer,  J. 

Another  question  in  the  case  is,  whether  the  testimony  of  Aiken,  as  to 
his  impression,  was  properly  received.  He  testified  that  he  read  the 
bond  hastily  when  he  signed  it  and  could  not  say  whether  it  had  then 
been  altered  or  not,  but  that  he  had  an  impression  in  regard  to  it.  The 
government  then  asked  what  the  impression  was,  to  which  the  re- 
spondent objected.  The  objection  has  several  aspects.  An  impression 
as  to  a  past  fact  may  mean  personal  knowledge  of  the  facts  as  it  rests 
in  the  memory,  though  the  remembrance  is  so  faint  that  it  cannot  be 
characterized  as  an  undoubting  recollection,  ahd  is  therefore  spoken  of 
as  an  impression.  This,  perhaps,  is  the  sense  in  which  the  word  is 
most  commonly  used  by  witnesses,  in  giving  their  testimony.  In  this 
sense  the  impression  of  a  witness  is  evidence,  however  indistinct  and 
unreliable  the  recollection  may  be.  No  line  can  be  drawn  for  the 
exclusion  of  any  record  left  upon  the  memory,  as  the  impress  of  per- 
sonal knowledge,  because  of  the  dimness  of  the  impression.  If,  there- 
fore, the  objection  is  to  be  considered  as  one  taken  to  the  general  com- 
petency of  such  testimony,  it  is  clear  that  it  was  properly  overruled. 
An  impression,  however,  may  mean  an  understanding  or  belief  of  the 
fact,  derived  from  some  other  source  than  personal  observation,  as  the 


Opinion  Evidence  475 

\ 
information  of  others;  or  it  may  mean  an  inference  or  conclusion  of 
the  mind  as  to  the  existence  of  the  fact,  drawn  from  a  knowledge  of 
other  facts.  When  used  in  these  senses,  it  is  not  evidence;  and  the 
objection  may  be  understood  to  be  that  enough  appears  in  other  state- 
ments of  the  witness,  when  considered  in  connection  with  the  subject 
of  his  testimony,  to  show  that  he  intended  to  use  the  word  in  one  of 
these  senses  as  his  understanding  and  belief,  or  his  inference  and 
conclusion,  and  not  as  his  recollection.  It  has  been  urged  in  the  argu- 
ment, that  when  the  witness  stated  that  he  read  the  bond  hastily,  and 
could  not  say  whether  it  had  then  been  altered  or  not,  he  was  fairly  to 
be  understood  as  meaning  that  he  had  no  recollection  founded  upon  his 
personal  observation,  as  would  enable  him  to  testify  from  memory; 
and  that,  consequently,  by  the  word  impression,  he  must  have  meant  an 
understanding  or  inference,  resulting  from  the  information  of  others, 
or  the  operations  of  his  own  mind,  instead  of  his  personal  knowledge  of 
the  fact.  If  it  was  apparent  to  the  court  that  the  word  was  thus  used, 
the  objection  is  well  taken.  We  think,  however,  that,  taking  the  whole 
testimony  together,  it  may  be  understood  to  mean  that,  although,  from 
the  slight  attention  which  he  gave  the  bond  in  his  hasty  reading,  he 
cannot  say  positively  whether  the  alteration  had  been  made  or  not,  he 
nevertheless  had  an  impression  upon  his  memory,  derived  from  reading 
it,  that  it  had  not.  At  least,  it  may  be  said  that  the  jury  might  so 
understand  him,  without  doing  violence  to  any  fact  or  statement  con- 
tained in  his  testimony.  If  it  was  susceptible  of  that  construction,  it 
could  not  be  excluded  by  the  court  merely  because  a  different  interpre- 
tation might  be  put  upon  it,  which  would  render  it  incompetent.  If 
the  parties  choose  to  leave  the  testimony  of  a  witness  doubtful,  by  re- 
fraining to  draw  from  him  an  explicit  declaration  of  his  meaning,  when 
it  is  susceptible  of  two  interpretations,  one  of  which  renders  it  com- 
petent and  the  other  incompetent,  it  must  be  submitted  to  tlys-  jury,  with 
proper  instructions  of  course,  as  to  how  they  are  to  regard'  it,  when  they 
have  ascertained  what  his  meaning  really  was. 

In  another  view,  the  objection  might  have  been/sustained,  if  it  had 
appeared  in  the  case  that  objection  was  placed  on  that  ground  at  the 
trial.  When  the  witness  stated  that  he  could  not  say  whether  the  bond 
had  been  altered  or  not,  it  might  well  be  doubted  how  he  intended  to  be 
understood  in  the  subsequent  statement  that  he  had  an  impression  in 
regard  to  it.  If  the  respondent  had  objected  that  the  witness  should 
not  be  asked  the  question  what  his  impression  was,  until  it  had  first  been 
ascertained  whether  he  meant  by  the  word  impression,  a  recollection  or 
not,  the  objection  would  have  been  sustained.    It  cannot  be  understood 


476  Cases  on  Evidence 

to  have  been  made  on  that  ground.  It  is  stated  as  a  general  objection, 
and,  as  such,  must  be  understood  as  taken  to  the  competency  of  the 
evidence,  and  not  to  the  form  of  the  question  or  other  incidental  matter, 
which,  if  stated  at  the  trial,  would  have  given  the  counsel  for  the  gov- 
ernment an  opportunity  to  obviate  it.  , 
Verdict  set  aside  and  new  trial  granted  on  other  grounds. 


BENNETT  v.  BEAM. 
42  Mich.  346.     (1880) 


Marston,  C.  J.  The  action  in  this  case  was  brought  to  recover  dam- 
ages for  breach  of  a  contract  to  marry. 

It  is  alleged  as  error  that  the  plaintiff  and  her  father  were  allowed  to 
testify  as  to  the  effect  of  the  alleged  refusal  to  marry,  upon  her  mind 
and  feelings.  That  such  evidence  was  admissible  under  the  general 
allegations  of  the  declaration  we  consider  too  cleai  to  require  argument. 
The  effect  upon  her  mind  and  feelings  was  one  of  the  usual  and  natural 
results  of  the  breach,  and  had  an  essential  bearing  upon  the  question  of 
damages. 

It  is  also  alleged  that  it  was  not  proper  to  show  the  financial  standing 
of  the  defendant. 

In  this  state  it  is  a  well  settled  legal  axiom  that  the  just  theory  of  an 
action  for  damages,  and  its  primary  object,  are  that  the  damages  recov- 
ered shall  compensate  for  the  injury  sustained.  There  are  exceptions 
to  this  rule,  but  it  would  not  be  claimed  that  this  case  comes  within 
them.  Now  the  contract  for  a  breach  of  which  this  suit  was  brought, 
was  one  for  a  life  association  of  interests,  and  it  is  one  of  the  most 
obvious  facts  that  the  pecuniary  circumstances  of  the  defendant,  as  well 
as  his  social  position,  would  largely  influence  any  one's  estimate  of  the 
damages  suffered.  This  would  be  so  even  if  the  woman  had  in  no 
manner  taken  the  man's  property  into  account  in  engaging  herself  to 
him,  but  the  law  always  supposes  that  property  considerations  are  not 
ignored  in  these  cases. 

In  cases  like  the  present,  what  loss  is  it  that  the  plaintiff  has  sus- 
tained by  a  breach  of  the  contract?  To  determine  this  we  must  look 
at  the  surroundings  and  see  what  it  was  to  which  the  defendant  invited 
her.  If  it  was  to  a  home  of  poverty  and  a  life  of  probable  hardship  and 
misery,  the  loss  would  apparently  be  small;  but  if  it  was  a  home  pes- 


Opinion  Evidence  477 

sessed  of  and  surrounded  by  all  the  comforts  and  even  the  luxuries  of 
life,  and  where  her  social  position  in  the  circles  in  which  she  would 
move  by  right  of  the  marriage  would  be  the  very  best,  the  case  would 
be  exactly  the  opposite,  because  in  such  case  there  would  be  abundant 
promise  of  social  and  domestic  happiness.  But  beyond  this  the  very 
marriage  confers  certain  rights  in  the  husband's  real  and  personal  estate 
of  which  she  cannot  afterwards  be  deprived  except  by  her  own  consent, 
and  she  would  naturally  and  justly  look  to  them  as  her  security  against 
becoming  dependent  through  the  accidents  and  misfortunes  of  life.  It 
is  all  these  that  the  breach  of  the  marriage  contract  deprives  the  woman 
of,  and  she  is  allowed  to  prove  them,  not  to  show  that  he  will  be  able 
to  satisfy  a  judgment  if  she  obtains  one,  but  to  measure  the  extent  of 
her  loss. 

For  the  breach  of  an  ordinary  contract,  as  for  the  sale  and  delivery 
of  goods,  the  wealth  of  the  defendant  can  and  should  liave  no  possible 
bearing  in  the  case,  as  it  could  in  no  way  enhance  or  lessen  the  damages 
sustained.  In  such  a  case  the  damages  would  be  ascertained  according 
to  well  settled  rules  dependent  upon  the  condition  of  the  market  and 
other  circumstances  which  the  defendant's  wealth  could  not  to  any  ap- 
preciable degree  affect.  In  this  case  a  prospective  participation  in  the 
wealth  of  the  defendant  is  one  of  those  things  of  which  the  plaintiff  by 
the  breach  has  been  deprived,  and  goes  therefore  to  the  extent  of  the 
injury.  Miller  v.  Rosier,  31  Mich.  478;  Kelly  v.  Riley,  8  Am.  336;  106 
Mass.  339.    See  also  James  v.  Biddington,  6  C  &  P.,  331. 

The  judgment  must  he  affirmed  with  costs. 


SWAN  and  others  v.  COUNTY  OF  MIDDLESEX. 
loi  Mass.  1^3.     (i86p) 

Petition  to  the  county  commissioners  by  Benjamin  L.  Swan  and  five 
others,  heirs  of  Benjamin  L.  Swan,  deceased,  for  a  jury  to  estimate  the 
damages  sustained  by  taking,  to  widen  High  Street  in  Med  ford,  a  strip 
of  land  three  feet  and  a  half  wide  from  the  front  of  a  lot  on  which  was 
a  dwelling-house ;  a  fence  and  trees  were  on  the  strip  taken.  Trial  be- 
fore the  sheriff  of  Middlesex,  who  returned  with  the  verdict  of  the  jury 
a  certificate  of  his  rulings  as  follows : 

"At  the  trial  the  petitioners  offered  evidence  tending  to  show  the 
position  of  the  fence,  and  the  value  of  the  trees  to  the  occupants  of  the 


478  Cases  on  Evidence 

house,  and  also  evidence  tending  to  show  the  cost  of  removing  the  fence 
and  trees ;  and  rested  their  case.  The  respondents  then  called  a  number 
of  witnesses,  all  of  whom  had  resided  many  years  in  Medford,  and 
some  been  selectmen  and  assessors,  and  who  all  testified  that  they 
had  knowledge  of  the  value  of  the  land  in  Medford,  some  of  them  from 
actual  sales  or  purchases  by  themselves,  and  some  of  them  from  know- 
ing of  sales  of  others;  they  all  testified  in  reply  to  questions  by  the 
petitioners,  that  they  had  no  actual  knowledge  of  the  effect  produced 
upon  the  value  of  the  dwelling-house  and  lot,  in  a  single  instance,  by 
widening  the  street  in  front,  and  narrowing  the  ground  in  front  of  the 
house.  The  respondents  then  inquired  of  each  of  the  witnesses,  what, 
in  his  opinion,  would  be  the  effect  upon  the  value  of  the  estate  in 
question,  of  widening  the  street,  and  cutting  off  the  land — ^and  the  trees. 
To  this  question  the  petitioners  objected,  both  on  the  ground  that  the 
witnesses  were  not  qualified  as  experts  to  answer  the  question,  and 
because  it  was  not  a  matter  requiring  any  special  knowledge  in  a  witness 
as  an  expert,  and  therefore  not  a  proper  matter  to  be  shown  by  an 
expert,  but  the  witnesses  were  allowed  to  answer  the  question. 

Gray,  J.  It  is  well  settled  in  this  Commonwealth  that,  when  the 
value  of  real  estate  is  in  controversy,  opinions  of  persons  acquainted 
with  its  value  are  admissible  in  evidence.  These  opinions  are  admitted, 
not  as  being  the  opinions  of  experts,  strictly  so-called,  for  they  are 
not  founded  on  special  study  or  training  or  professional  experience;  but 
rather  from  necessity,  upon  the  ground  that  they  depend  upon  knowl- 
edge which  any  one  may  acquire,  but  which  the  jury  may  not  have, — 
and  that  they  are  the  most  satisfactory,  and  often  the  only  attainable, 
evidence  of  the  fact  to  be  proved.  D wight  v.  County  Commissioners, 
II  Cush.  203;  Shattuck  v.  Stoneham  Branch  Railroad  Co.,  6  Allen  116, 
117;  Whitman  v.  Boston  &  Maine  Railroad,  7  Allen  316,  and  cases 
there  cited.  The  same  rule  has  prevailed  in  courts  of  authority  in 
other  states.  Kellogg  v.  Krauser,  14  S.  &  R.  137 ;  Warren  v.  Wheeler, 
21  Maine  484;  Clark  v.  Baird,  5  Selden,  183.  The  knowledge  req- 
uisite to  qualify  a  witness  to  testify  to  his  opinion  of  the  value 
of  the  lands  may  either  be  acquired  by  the  performance  of  official 
duty,  as  by  a  county  commissioner  or  selectman,  whose  duty  it  is 
to  lay  out  public  ways,  or  by  an  assessor  whose  duty  it  is  to  ascer- 
tain the  value  of  the  lands  for  the  purpose  of  taxation;  or  it  may 
be  derived  from  knowledge  of  sales  and  purchases  of  other  lands 
in  the  vicinity,  either  by  the  witness  himself  or  by  other  persons. 
Dickens  v.  Fitchburg,  13  Gray  546.  Whitman  v.  Boston  &  Maine 
Railroad,   70   Allen   316.    Russell   v.   Horn   Pond    Branch    Railroad 


Opinion  Evidence  479 

Co.,  4  Gray  607;  Fowler  v.  County  Commissioners,  6  Allen  97.  On 
the  question  of  the  sufficiency  of  the  knowledge  of  the  witness,  must 
be  left  to  the  discretion  of  the  judge  or  officer  presiding  at  the  trial. 
Paine  v.  Boston,  4  Ala. ;  Shattuck  v.  Stoneham  Branch  Railroad  Co.,  6 
Allen  117.  When  the  matter  in  issue  is  the  assessment  of  damages  to 
land  by  the  laying  out  of  a  public  way,  witnesses  having  the  requisite 
knowledge  may  testify  to  their  opinion  of  the  comparative  value  of  the 
lands  immediately  before  and  after  the  taking,  and  to  the  eflFect  of  the 
taking  upon  the  value  of  the  remaining  land,  by  way  of  injury  or  bene- 
fit, Dwight  V.  County  Commissioners,  11  Cush,  201;  Shaw  v.  Charles- 
town,  2  Gray  107;  West  Newbury  v.  Chase,  5  Gray  421 ;  Dickenson  v. 
Fitchburg,  13  Gray  546;  Shattuck  v.  Stoneham  Branch  Railroad  Co.,  6 
Allen  116,  117. 

Applying  these  rules  to  the  present  case,  we  are  of  the  opinion  that 
there  is  no  ground  for  sustaining  the  petitioners'  exceptions  to  the  rul- 
ings of  the  sheriff.  The  only  objections  taken  at  the  trial,  so  far  as 
they  applied  to  each  of  the  witnesses,  were  to  the  admission  of  the 
question,  "what  in  his  opinion  would  be  the  effect,  upon  the  value  of 
the  estate  in  question,  of  widening  the  street  and  cutting  off  the  land 
and  trees  ?"  and  to  the  answer  to  this  question  given  on  direct  examina- 
tion. The  grounds  assigned  for  these  objections  were  twofold,  because 
the  witnesses  were  not  qualified  to  answer  the  question,  and  because  it 
did  not  relate  to  a  matter  upon  which  the  opinion  of  any  witness  would 
be  admissible.    Neither  of  these  grounds  is  tenable. 

Verdict  accepted 


LYNCH  V.  SMITH. 
104  Mass.  52.     (1870) 


Tort  in  the  plaintiff's  name  by  his  next  friend  for  injuries  alleged  to 
have  been  caused  on  December  3,  1866,  by  the  negligence  of  the  de- 
fendant's servant  in  driving  a  pair  of  horses,  drawing  a  hack,  over  the 
plaintiff,  who  at  the  time  of  the  accident  was  crossing  Henly  Street  in 
Charlestown  and  using  due  care.  The  answer  denied  tliat  the  driver 
was  negligent,  and  that  the  plaintiff  used  due  care. 

The  plaintiff  called  his  school-teacher,  Sarah  Browers,  as  a  witness, 
"and  offered  to  show  by  her,  and  by  others,  that,  in  her  and  their  opin- 
ion, the  plaintiff  was  capable  of  exercising  ordinary  care  in  travelling 


480  Cases  on  Evidence 

along  and  across  the  streets  through  which  he  was  called  to  pass  in  going 
to  and  returning  from  school,  and  was  competent  to  go  to  and  from 
school  unattended;  but  the  judge  ruled  the  testimony  incompetent  and 
inadmissible,  and  refused  to  receive  it." 

Chapman,  C.  J.  The  plaintiff's  declaration  alleges  that  the  defendant 
was  driving  a  hack  drawn  by  a  pair  of  horses,  in  and  along  Henly 
Street  in  Charlestown,  by  his  servant,  and  carelessly  ran  over  the 
plaintiff  (who  was  crossing  the  street  and  using  due  care),  and  injured 
him.    The  answer  puts  these  allegations  in  issue. 

It  appeared  in  evidence  that  the  plaintiff  was  a  child  four  years  and 
seven  months  old,  and  of  the  ability  and  intelligence  of  the  average  of 
children  attending  the  public  schools  of  the  age  of  five  years,  and  was 
attending  the  common  school  when  the  accident  happened. 

The  question,  whether  a  child  like  the  plaintiff  is  of  such  capacity  that 
he  may  be  safely  trusted  to  go  to  and  from  school  alone,  is  one  of  fact, 
and  not  of  law.  Its  importance  arises  from  the  necessity  that  exists, 
in  an  action  like  this,  to  prove  the  due  care  that  he  alleges.  In  an  ac- 
tion for  a  wilful  assault  and  battery  in  the  street,  it  would  be  immaterial. 
But  in  an  action  for  negligence,  either  the  plaintiff,  or  some  one  on  his 
behalf,  must  use  due  care,  so  that  his  own  negligence  shall  not  have 
contributed  directly  to  the  injury.  On  this  point,  the  testimony  of 
the  school-teacher,  merely  expressing  her  opinion  of  the  capacity  of 
the  child,  was  properly  excluded.  Yet,  in  connection  with  a  description 
of  the  child,  an  opinion  of  a  person  acquainted  with  him,  and  having 
had  opportunity  to  observe  him,  as  to  his  quickness  of  observation  and 
comprehension,  as  compared  with  other  persons,  would  be  admissible. 
The  statement  of  such  an  opinion,  as  to  whether  he  was  physically  large 
or  small,  strong  or  weak,  and  quick  or  slow  of  movement,  in  com- 
parison with  others,  would  be  according  to  every  day's  practice;  and 
when  related  to  the  exhibition  of  mental  qualities,  it  would  be  of  the 
same  species.  There  is  a  class  of  evidence  of  this  character  which 
necessarily  involves  the  statement  of  opinion.  W'e  have  had  occasion  to 
consider  it  recently  in  Commonwealth  v.  Dorsey,  103  Mass.  412. 

Exception  sustained  on  another  ground. 


Opinion  Evidence  481 

VANDINE  V.  BURPEE,  &  another. 
54  Mass.  288.     (1847) 

This  was  action  of  trespass  upon  the  case,  brought  against  Amos  Bin- 
ney  and  Nathaniel  Burpee,  to  recover  damages  for  injury  alleged  to  be 
done  the  plaintiff's  garden  and  nursery  in  Cambridge,  by  smoke,  heat 
and  gas,  proceeding  from  their  brick  kilns,  made  and  burnt  in  a  brick 
yard  near  said  garden.  The  defendants  severally  pleaded  the  general 
issue. 

Dewey,  J.  The  only  objection,  now  urged  to  the  ruling  at  the  trial, 
is  the  admission  of  the  testimony  of  Willett  and  Walker,  as  to  their 
opinion  of  the  amount  of  damages  sustained  by  the  plaintiff,  by  the 
injuries  which  they  had  already  specified  in  detail. 

As  a  general  rule,  witnesses  are  to  testify  to  facts,  and  the  jury  are 
to  draw  the  inferences  and  form  the  opinions  which  are  to  govern  the 
case.  In  the  application  of  this  principle,  it  has  been  sometim.es  sup- 
posed that  it  should  be  carried  so  far  as  to  exclude  the  opinion  of 
witnesses  as  to  the  value  of  property  which  is  in  controversy ;  and  de- 
cisions to  this  effect  are  found  in  the  New  Hampshire  Reports.  3  N. 
Hamp.  349;  6  N.  Hamp.  462;  10  N.  Hamp.  130;  11  N.  Hamp.  397. 
The  case  cited  from  8  Shepley,  23  Wend.  354,  and  14  S.  &  R.,  sanction 
the  contrary  doctrine. 

It  seems  to  us  that  it  would  be  impractical  to  dispense  with  this  species 
of  testimony,  in  many  actions  of  trover  for  personal  property,  where  no 
details  of  facts  could  adequately  inform  the  jury  of  the  value  of  the 
articles.  The  opinion  of  a  witness,  as  to  the  value  of  a  horse,  is  much 
more  satisfactory  evidence  than  a  detailed  statement  of  his  size,  color, 
age,  etc.,  to  give  the  jury  the  requisite  information,  to  enable  them  to 
assess  damages  for  the  conversion  of  such  a  horse.  In  the  present  case, 
the  evidence  of  opinion  was  offered  under  the  most  favorable  circum- 
stances for  its  admissions.  The  witnesses  were  men  having  practical 
experience  with  the  subject  of  cultivating  fruit  trees  and  shrubs ;  they 
had  already  stated,  in  detail,  to  the  jury,  the  nature  and  extent  of  the 
injury  so  far  as  description  of  that  kind  could  add ;  also  their  opinions 
as  to  the  amount  of  damage  occasioned  by  the  injury,  of  which  they 
had  before  testified. 

The  court  are  of  the  opinion  that  the  testimony  was  competent. 

Exceptions  overruled. 


482  Cases  on  Evidence 

C.  &  E.  I.  R.  R.  CO.  V.  WALLACE. 
202  III.  129.    (1903) 

This  is  an  action,  brought  by  appellee  against  the  appellant  company 
to  recover  damages  for  personal  injury, 

Mr.  Chief  Justice  Magruder  delivered  the  opinion  of  the  court. 

Counsel  for  the  appellant  company  urge  only  two  points  upon  our 
attentions  as  reasons  for  asking  the  reversal  of  the  judgment  of  the 
Appellate  Court.  These  two  points  are,  first,  that  the  trial  court  erred 
in  refusing  to  sustain  objections,  made  by  appellant  to  certain  hypo- 
thetical questions  asked  of  expert  witnesses  testifying  in  behalf  of  ap- 
pellee upon  the  trial  below ;  and,  second,  that  the  court  below  erred  in 
sustaining  the  demurrer  to  the  plea  of  the  Statute  of  Limitations,  which 
was  filed  to  the  first  additional  count. 

It  seems  to  be  generally  settled  by  the  great  weight  of  authority,  that 
a  hypothetical  question,  addressed  to  an  expert  witness,  is  not  improper, 
simply  because  it  includes  only  a  part  of  the  facts  in  evidence,  provided 
the  testimony  tends  to  establish  such  facts  as  are  embodied  in  the  ques- 
tion. (Rogers  on  Expert  Testimony,  2d  ed.,  sec.  27).  This  precise 
point  has  been  decided  by  this  court  in  Howard  v.  People,  185  111.  552, 
where  we  said  (p.  560)  :  "There  was  evidence  tending  to  prove  each 
of  the  facts  stated  in  the  hypothetical  questions  upon  which  the  opinions 
of  witnesses  were  asked,  and  that  was  all  that  was  necessary.  (Thomp- 
son on  Trials,  sec.  604,  et  seq.)  Whether  the  facts,  stated  in  a  hypo- 
thetical question,  are  sufficiently  established  by  the  proof  is  to  be  de- 
cided by  the  jury.  'The  fact,  that  a  question  is  a  hypothetical  one,  im- 
plies that  the  truth  of  some  statement  of  facts  is  assumed  for  a  par- 
ticular purpose,  and,  if  such  a  question  could  be  based  upon  undisputed 
facts  alone,  it  would  never  be  asked  in  any  case  where  an  issue  of  fact 
arose.'  (Underbill  on  Evidence,  p.  272.)  To  require  the  court  to 
determine  in  advance  that  questions  so  put  embraced  all  the  facts 
would  be  to  take  from  the  jury  the  weight  to  be  given  to  the  evidence." 
The  ruling  of  the  Howard  case  upon  this  subject  was  subsequently  re- 
ferred to  and  adopted  in  Chicago  and  Alton  Railroad  Co.  v.  Harington, 
192  111.  9,  where  it  was  said :  "A  hypothetical  question-  may  be  put  to 
a  witness,  if  there  is  evidence  tending  to  prove  the  facts  stated  in  the 
question." 

The  rule,  that  a  hypothetical  question  is  not  improper  because  it 
includes  only  a  part  of  the  facts  in  evidence,  is  sustained  by  the  de- 
cisions in  other  States,  as  well  as  those  in  Illinois, 


Opinion  Evidence  483 

In  Cole  V.  Fall  Brook  Coal  Co.,  159  N.  Y.  68,  it  was  said:  "In 
framing  a  hypothetical  question,  counsel  may  base  it  upon  the  hy- 
pothesis of  the  truth  of  all  the  evidence,  or  upon  the  hypothesis  es- 
pecially framed  on  certain  facts  assumed  to  be  proved  for  the  purpose 
of  the  inquiry.  The  question  is  not  improper  simply  because  it  includes 
only  a  part  of  the  facts  in  evidence.  (Stearns  v.  Field,  90  N.  Y.  640.) 
If  framed  upon  the  assumption  of  certain  facts,  counsel  may  assume 
the  facts  in  accordance  with  his  theory  of  them,  it  not  being  essential 
that  he  should  state  the  facts  as  they  actually  exist,  provided  there  is 
proof  sustaining  those,  upon  which  the  question  is  based.  *  *  *  He 
may  assume  any  state  of  facts  which  there  is  evidence  to  prove,  and 
have  the  opinion  of  the  expert  upon  the  facts  assumed." 

The  question  is  ably  discussed  in  the  case  of  Goodwin  v.  State,  96 
Ind.  574,  where  it  is  said:  "If  the  court  were  required  to  determine 
whether  the  hypothetical  question  correctly  stated  all  the  facts,  it 
would  be  compelled  to  usurp  the  functions  of  the  jury.  If  the  court 
were  required  to  determine  whether  all  the  facts  were  stated  it  would 
be  compelled  to  wrest  from  the  jury  the  right  to  determine  the  cred- 
ibility of  witnesses.  If  the  hypothetical  question  were  required  to  em- 
brace all  the  facts,  then  there  would  be  an  end  to  all  certainty  in  trials, 
for  confusion  and  endless  wrangling  must  inevitably  flow  from  such 
a  rule." 

The  rule  is  thus  stated  in  8  Encyclopedia  of  Pleading  and  Practice, 
pp.  755,  757)  :  "Hypothetical  questions  to  an  expert  witness  may  be 
framed  either  upon  all  the  facts  in  the  case,  or  upon  any  part  of  the 
facts  assumed  to  be  true,  which  is  sufficient  in  itself.  *  *  *  It  must 
be  based  upon  facts  in  evidence,  but  may  be  addressed  to  any  reasonable 
theory  which  may  be  taken  of  them."  (See  also  Filer  v.  New  York 
Central  Railroad  Co.,  49  N.  Y.  46.)  It  is  said  in  some  of  the  author- 
ities that,  where  such  a  hypothetical  question  does  not  embrace  all  the 
facts,  the  opposing  counsel  can  on  cross-examination  ascertain  from 
the  witness,  whether  such  omitted  facts  would  in  anywise  modify  or 
change  the  opinion  of  the  witness,  whether  such  omitted  facts  would 
in  an)rwise  modify  or  change  the  opinion  of  the  witness.  Thus  in 
Stearns  v.  Field,  90  N.  Y.  640,  the  court  says :  "It  is  now  argued  by 
the  appellant  that  the  question  is  defective  in  that  it  did  not  state 
enough,  *  *  *  If,  in  the  opinion  of  the  counsel,  there  was  evidence 
other  than  that  supposed  proper  for  the  witness  to  consider,  his  atten- 
tion should  have  been  called  to  it  upon  cross-examination.  Such  a 
question  is  not  improper  because  it  includes  only  a  part  of  the  facts  in 
evidence.    (Stearns  v.  Field,  90  N.  Y.  640.) 


484  Cases  on  Evidivnce; 

So,  in  the  case  at  bar,  if  the  hypothetical  questions,  addressed  by 
counsel  for  the  appellee  to  the  expert  witness,  omitted  facts  claimed  by 
appellant  to  have  been  proven,  and  if  the  appellant  believed  that  such 
omitted  fact,  as  for  instance  those  relating  to  childbirth,  miscarriage, 
change  of  life  or  sedeiAary  habits,  might  have  had  a  bearing  upon  the 
opinions  of  the  witnesses,  counsel  for  appellant  should  have  called  the 
attention  of  the  witnesses  to  such  omitted  matters-  upon  cross- 
examination. 

Judgment  affirmed- 


THE  PEOPLE  V.  LEHR. 
ip6  III.  s6i.     (1902) 


Mr.  Chii:f  Justice  Wilkin  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Appellate  Court  for  the  Second  District, 
to  reverse  a  judgment  of  that  court  affirming  a  judgment  of  the  Circuit 
Court  of  Peoria  county  acquitting  defendant  in  error  of  a  violation  of 
the  act  entitled  "An  act  to  regulate  the  practice  of  medicine  in  the  State 
of  Illinois,"  etc.     (Kurd's  Stat.  1899,  p.  1143.) 

The  only  criticism  made  upon  the  ruling  of  the  Circuit  Court  in  the 
exclusion  of  testimony  is,  that  it  refused  to  allow  a  physician.  Dr.  Ed- 
ward Hasson,  to  answer  the  question,  "State  whether  or  not,  in  your 
opinion,  a  person  prescribing  a  medical  device,  claiming  that  it  will  cure 
rheumatism,  etc.,  would  be  regarded  as  practicing  medicine,  as  you 
understand  the  term?"  Manifestly,  the  question  was  improper.  The 
statute  defines  the  practicing  of  medicine,  and  it  was  for  the  jury,  and 
not  for  a  witness,  even  though  he  might  be  called  an  expert,  to  say 
whether  certain  conduct  amounted  to  the  practice  of  medicine.  In 
other  words,  this  question  seeks  to  have  the  witness  decide  the  very 
ultimate  question  which  the  jury  had  sworn  to  try.  The  court  properly 
sustained  the  objection  to  it. 

Judgment  affirmed. 


Opinion  Evidence  485 

SEXTON  V.  LAMB. 
2y  Kan.  426.     (1882) 

The  opinion  of  the  court  was  delivered  by  Brewer^  J. 

The  court  over  the  objection  of  defendant,  achiiitted  the  testimony 
of  several  witnesses  that  they  had  been  in  the  ice  business  in  the  city 
of  Leavensworth  for  a  series  of  years,  and  that  with  ice  properly 
handled  and  managed,  only  a  certain  per  cent,  was  lost  by  melting, 
etc.  The  question  now  presented  is,  was  such  testimony  competent 
for  the  purpose  of  determining  what  amount  of  ice  was  originally 
in  the  ice-house?  It  is  true  that  the  most  direct  testimony  would  be 
that  of  those  who  put  ice  up,  or  of  parties  who  measured  the  ice 
after  it  was  already  in  the  ice-house;  and  yet  we  think  such  testi- 
mony was  competent,  and  tended  to  show  the  amount  of  ice  originally 
there.  Counsel  call  it  expert  testimony,  and  say  that  it  is  not  legi- 
timate expert  testimony;  and  yet  it  is  the  testimony  of  those  ex- 
perienced in  the  business  of  handling  ice  as  to  waste  in  such  handling, 
and  therefore  we  think  competent  testimony.  It  tends  most  clearly 
to  show  either  that  the  amount  of  ice  claimed  was  not  originally 
there,  or  that  the  defendant,  or  manager,  or  some  other  party  had 
made  improper  disposition  of  such  ice;  for  if  ice  properly  handled 
loses  in  ordinary  sale  by  retail  only  from — 30  to  50  per  cent.,  and  if 
only  160  to  170  tons  are  reported  as  sold,  then  it  follows  that  either 
the  ice  was  improperly  handled  and  managed  by  the  agent,  or  that 
sales  made  were  not  reported,  or  that  some  parties  had  improperly 
taken  ice  from  the  ice-house,  or  else  that  the  amount  of  ice  originally 
reported  was  not  there;  and  while  this  was  not  the  most  direct  and 
positive  testimony,  yet  it  certainly  was  testimony  competent  to  be  con- 
sidered, and  testimony,  in  the  absence  of  more  direct  and  positive  testi- 
mony, sufficient  to  sustain  and  uphold  the  conclusions  of  the  trial 
judge.  It  is  certainly  testimony  which,  presuming  good  faith  on 
the  part  of  the  agent,  and  good  faith  on  the  part  of  the  defendant, 
tends  strongly  to  show  that  there  was  a  great  mistake  as  to  the  amount 
of  ice  which  in  fact  he  had  originally  put  up  in  the  ice-house. 

Affirmed. 

All  the  Justices  concurring. 


486  Cases  on  Evidence 

LOWMAN  V.  THE  STATE. 
lop  Ga.  501.     (j8p9) 

Lumpkin,  P.  J.  At  the  August  term,  1899,  of  the  Superior  Court 
of  Dawson  county,  Morgan  Lowman  was  convicted  of  the  murder 
of  Benjamin  Anderson,  and  sentenced  to  be  executed.  The  accused 
made  a  motion  for  a  new  trial,  which  was  overruled,  and  the  case  is 
here  for  review. 

A  witness  for  the  accused,  who  was  present  at  the  homicide  and 
who  had  given  his  version  of  what  had  occurred,  was  asked  if  at  a 
certain  juncture  the  time  had  not  come  for  the  accused — "to  either 
run  or  fight."  The  answer  would  have  been  in  the  affirmative,  but! 
it  was  properly  rejected.  Allowing  this  testimony  to  go  to  the  jury 
would  have  been  permitting  the  witness  to  express  his  mere  opinion 
as  to  a  '-matter  which  did  not  fall  within  the  domain  of  "opinion 
evidence."  The  nature  of  the  emergency  in  which  the  accused  was 
placed  by  the  conduct  of  the  deceased,  and  the  manner  in  which  it 
should  have  been  met,  were  matters  for  determination  by  the  jury 
and  not  by  the  witness. 

Judgment  reversed  on  another  ground. 

All  the  Justices  concurring. 


JONES  and  FULLER. 
19  S.  C.  66.     (1882) 


Mr.  Justice  McIver.  This  was  an  action  to  recover  damages  for 
a  breach  of  promise  of  marriage.  The  contract  and  the  breach  thereof 
were  fully  established,  not  only  by  the  admission  in  the  pleadings,  but 
also  by  testimony  adduced  at  the  trial,  and  the  only  question  for  the 
jury  was  as  to  the  amount  of  the  damages. 

The  plaintiff,  after  adducing  testimony  as  to  the  contract  and 
its  breach,  offered  evidence  tending  to  show  the  damages  which  she 
had  sustained.  Amongst  other  witnesses  offered  for  this  purpose, 
Dr.  E.  G.  Simpson  was  examined,  who  testified  "that  he  had  known 
the  plaintiff  from  her  infancy,  having  been  the  family  physician; 
that  the  social  standing  of  the  family  was  as  good  as  any  in  the  coun- 
try; that  the  plaintiff  was  particularly  bright  and  attractive,  and  that 


Opinion  Evidence  487 

she  was  well  educated ;  that  her  engagement  to  Fuller  was  well  known 
in  the  community,  and  also  the  treatment  which  she  had  received  from 
Fuller;  that  he  thought  she  had  been  seriously  damaged.'* 

This  witness  was  then  asked  the  following  question:  "From  what 
you  know  of  all  the  facts  and  circumstances,  how  much  was  the 
plaintiff  damaged?"  To  this  question  the  defendant  objected,  and 
his  objection  being  overruled,  the  witness  answered  as  follows :  "That 
he  thought  the  plaintiff  had  been  seriously — somewhere  from  $5,000 
to  $10,000."  The  next  witness  offered  was  Col.  John  G.  Williams, 
who  after  testifying  substantially  as  Dr.  Simpson  had  done,  was 
asked  the  same  question,  as  to  what  he  thought  was  the  amount  of 
damages  sustained  by  plaintiff,  to  which,  after  objection,  which  was 
overruled,  he  replied :  "Her  damages  are  incalculable  in  dollars  and 
cents — certainly  not  less  than  $10,000." 

No  testimony  was  offered  on  the  part  of  the  defense,  and  the 
circuit  judge,  after  instructing  the  jury  that  the  only  question  for 
them  to  determine  was  the  amount  of  damages,  the  contract  and  its 
breach  having  been  admitted  by  the  pleadings,  proceeded  to  charge 
the  jury. 

The  jury  found  a  verdict  in  favor  of  the  plaintiff  for  $9,000;  and  a 
motion  for  a  new  trial,  on  the  minutes,  having  been  refused,  the  de- 
fendant appealed  from  the  judgment  entered  on  the  verdict  on  the 
following  ground:  "Because  his  Honor  erred  in  allowing  the  wit- 
nesses, Dr.  E.  G.  Simpson  and  Col.  John  G.  Williams,  to  state  to  the 
jury  their  opinions  as  to  the  damages  inflicted  upon  the  plaintiff  by 
breach  of  contract  of  marriage  by  the  defendant." 

While  much  has  been  written  by  elementary  writers,  and  in  the 
opinions  of  the  courts,  as  to  the  admissibility  of  the  opinions  of  wit- 
nesses as  evidence,  we  are  not  aware  of  any  case  in  which  the  precise 
question  raised  by  this  appeal,  has  been  determined.  We  must,  there- 
fore, resort  to  the  general  principles  of  evidence,  and  from  them 
deduce  the  rule  applicable  to  this  particular  case. 

There  can  be  no  doubt  that,  as  a  general  rule,  a  witness  is  not  at 
liberty  to  express  an  opinion,  but  must  confine  himself  to  the  state- 
ment of  fact  but  there  is  little  doubt  that  this  rule  is  subject  to  many 
exceptions.  This  will  be  seen  by  reference  to  the  case  of  Common- 
wealth V.  Sturtivant,  117  Mass.  122,  and  the  note  to  that  case  as 
reported  in  19  Am.  Rep.  410,  as  well  as  to  the  case  of  State  v.  Pike, 
40  N.  H.  399,  reported  also  in  6  xA.m.  Rep.  533 ;  especially  the  dis- 
senting opinion  of  Doe,  J.,  which  afterwards  received  the  sanction 
of  the  same  court  in  Hardy  v.  Merril,  50  N.  H.  227,  22  Am.  Rep.  41 


488  Cases  on  Evidence 

where  the  case  of  the  State  v.  Pike  was  overruled.  In  these  cases 
will  be  found  elaborate  discussion  of  the  subject  and  very  full  col- 
lections of  the  authorities. 

In  I  Whart.  Ev.  §  511,  the  writer,  in  discussing  this  subject,  after 
mentioning  many  instances  in  which  exceptions  to  the  general  rule 
have  been  allowed,  lays  down  the  following  principle :  "Whenever 
a  condition  of  things  is  such  that  it  cannot  be  reproduced  and  made 
palpable  in  the  concrete  to  the  jury,  or  when  language  is  not  ade- 
quate to  such  realization,  then  a  witness  may  describe  it  by  its  effect 
on  his  mind,  even  though  such  effect  be  opinion."  Again,  in  section 
450,  the  same  author,  in  showing  that  the  exception  to  the  general 
rule  is  not  confined  to  the  case  of  the  testimony  of  an  expert,  speaks 
of  the  admissibility  of  opinions  as  to  the  amount  of  the  damages 
caused  by  another's  act,  in  these  words :  "When  the  thing  damaged 
is  one  of  every-day  use,  whose  depreciation  an  ordinary  observer  can 
estimate,  then  such  an  observer  may  be  called  to  express  his  opinion 
of  the  extent  of  the  damage  sustained.  If  the  facts  which  form  the 
basis  of  such  an  opinion  can  be  specified,  then  they  must  be  stated ;  if 
the  conclusion  is  one  which  the  jury  can  draw,  then  to  the  jury  must 
be  left  the  drawing  the  conclusion.  But  when,  as  is  often  the  case, 
those  facts  can  be  best  expressed  by  the  damage  they  cause,  then  this 
damage  and  its  extent  may  be  testified  to  by  witnesses." 

In  Commonwealth  v.  Sturtivant,  supra,  it  is  said :  "The  exception 
to  the  general  rule,  that  witnesses  cannot  give  opinions,  is  not  con- 
fined to  the  evidence  of  experts,  testifying  on  subjects  requiring  spe- 
cial knowledge,  skill  or  learning,  but  includes  the  evidence  of  common 
observers,  testifying  to  the  results  of  their  observation  made  at  the 
time,  in  regard  to  common  appearances  or  facts,  and  a  condition  of 
things  which  cannot  be  reproduced  and  made  palpable  to  a  jury.  3uch 
evidence  has  been  said  to  be  competent  from  necessity,  on  the  ground 
— the  testimony  of  experts,  as  the  only  method  of  proving  certain 
facts  essential  to  the  proper  administration  of  justice." 

In  Hardy  v.  Merril,  it  is  said:  "Opinions  of  witnesses,  derived 
from  observation,  are  admissible  in  evidence  when,  from  the  nature 
of  the  subject  under  investigation,  no  better  evidence  can  be  obtained." 

From  these  authorities  we  deduce  the  following  conclusions :  First. 
That  the  exception  to  the  general  rule,  that  the  opinions  of  witnesses 
are  not  competent  evidence,  is  not  confined  to  the  case  of  expert 
testimony.  Second.  That  while  it  is  necessary  that  the  witness 
should  first  state  the  facts  upon  which  he  bases  his  opinion,  where 
the  facts  are  such  as  are  capable  of  being  reproduced  in  language,  it 


Opinion  Evide;nce  489 

is  not  necessary  to  do  so  where  the  facts  are  not  capable  of  reproduc- 
tion in  such  a  way  as  to  bring  before  the  minds  of  the  jury  the  con- 
dition of  things  upon  which  the  witness  bases  his  opinion.  Third. 
That  such  evidence  is  competent  from  the  necessity  of  the  case. 

Now,  to  apply  these  principles  to  the  case  under  consideration : 
The  only  question  for  the  jury  was  as  to  the  amount  of  damages 
sustained  by  the  plaintiflf,  and  this  question  was  to  be  determined  by 
the  evidence  adduced.  The  witnesses  whose  testimony  was  objected 
to,  were  not  strangers  who  were  called  upon  to  express  an  abstract 
opinion  as  to  the  amount  of  damages  which  a  lady  would  sustain  by 
the  breach  of  promise  of  marriage,  biU  they  were  intimate  acquaintances, 
who  knew  well  the  social  position  of  the  plaintiff,  her  temperament 
and  disposition,  and  all  her  surroundings,  and  frc«n  the  knowledge 
thus  acquired  they  formed  their  estimate  of  the  damages  which  she 
had  sustained.  It  is  difficult  to  conceive  how  it  would  have  been  pos- 
sible for  these  witnesses  to  state  all  the  various  facts,  or  reproduce  in 
language  the  condition  of  things,  upon  which  they  based,  their  esti- 
mates, so  as  to  make  the  same  palpable  to  the  minds  of  the  jury. 
How  could  they  express  in  language  the  degree  of  sensibility  of  the 
lady,  or  the  numerous  other  impalpable  things  which  went  to  make 
up  their  estimate  of  the  amount  of  damages  which  she  had  sustained. 
We  think  it  was  just  one  of  those  cases  where,  the  language  of  the 
eminent  author,  Wharton,  the  "facts  can  be  best  expressed  by  the 
damage  they  cause." 

In  our  judgment,  therefore,  there  was  no  error  in  admitting  the 
testimony  of  these  witnesses. 

The  judgment  of  this  court  is  that  the  judgment  of  the  Circuit  Court 
be  affirmed. 


I.  C.  R.  R.  CO.  V.  THE  PEOPLE. 

143  III.  434.     (1892) 

This  is  a  petition  for  a  mandamus,  filed  on  April  17,  1891,  in  the 
Circuit  Court  of  Alexander  County  in  the  name  of  the  People 
by  the  State's  Attorney  of  that  county,  against  the  Illinois  Central 
Railroad  Company  to  compel  that  company  to  cause  all  of  its  regular 
passenger  trains  coming  into  the  city  of  Cairo  to  be  brought  down  to 
the  passenger  station  at  the  intersection  of  Second  and  Ohio  Levee 


490  Cases  on  Evidence 

streets  in  that  city,  and  there  stopped  a  sufficient  length  of  time  to  re- 
ceive and  let  off  passengers  with  safety. 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  court: 
One  of  the  witnesses  of  the  company,  upon  the  trial  below,  who  was 
an  assistant  of  appellant's  second  vice-president,  was  asked  the  ques- 
tion whether  the  fast  mail  train  was  a  regular  passenger  train,  but,  upon 
objection  made,  was  not  allowed  to  answer.  The  refusal  of  the  court 
to  permit  him  to  answer  is  claimed  by  the  appellant  to  have  been  erro- 
neous, but  we  think  the  ruling  of  the  trial  judge  was  correct.  The 
witness  was  asked  to  decide  the  very  question,  which  the  court  trying 
the  case  without  a  jury  was  called  upon  to  decide.  A  witness  is  not 
permitted  to  give  his  opinion  as  an  expert  in  reference  to  a  matter, 
which  does  not  involve  a  question  of  science,  skill  or  trade.  To  deter- 
mine whether  a  train  is  a  regular  passenger  train  is  not  a  subject,  which 
"so  far  partakes  of  the  nature  of  a  science  as  to  require  a  course  of 
previous  habit  or  study,  in  order  to  the  attainment  of  a  knowledge  of 
it."  (Linn  v.  Sigbee,  67  111.  75;  Wight  Fire  Proofing  Co.  v.  Poczekai, 
130  id.  139).  The  opinions  of  witnesses  should  not  be  asked  in  such  a 
way  as  to  cover  the  very  question  to  be  found  by  the  jury  or  court. 
(C.  &  A.  R.  R.  Co.  V.  S.  &  N.  W.  R.  R.  Co.,  67  111.  142.)  Where  the 
matter  inquired  about  requires  no  special  knowledge,  and  may  be  de- 
termined by  a  jury  upon  a  sufficient  description  of  the  facts  in  regard  to 
it,  it  is  not  proper  to  receive  the  testimony  of  experts.  (Hopkins  v. 
Ind.  &  St.  L.  R.  R.  Co.,  78  111.  32;  City  of  Chicago  v.  McGiven,  id. 
347;  Pennsylvania  Co.  v.  Conlan,  loi  id.  93.) 

•         Judgment  affirmed. 


EES  INTEB  ALIOS.i 

HODGES  v.  PERCIVAL. 
J32  III.  5J.     (i8po) 


Mr.  Justice  Magruder  delivered  the  opinion  of  the  court: 
This  is  an  action  of  case  begun  by  the  appellee  on  February  12, 
1887,  in  the  Superior  Court  of  Cook  county,  against  the  appellant  to 
recover   damages    for   injuries   suffered   through   the    falling  of   an 


I  Hughes  on  Evidence,  p.  35, 


Res  Inter  Alios  491 

elevator  in  a  building  owned  by  the  appellant.  The  jury  returned 
a  verdict  of  $1500.00  for  the  plaintiff  below,  and  judgment  was 
rendered  on  the  verdict.  This  judgment  has  been  affirmed  by  the 
Appellate  Court  and  from  the  latter  court  the  case  is  brought  before  us 
by  appeal. 

In  the  course  of  the  trial. below,  the  plaintiff  introduced  a  witness 
by  the  name  of  Ellithorpe,  who  testified  that  he  had  been  in  the  ele- 
vator business  about  ten  years,  that  what  is  known  as  the  air-cushion 
was  in  common  use  in  December,  1886,  that  its  object  was  to  prevent 
injury  from  the  fall  of  an  elevator  by  confining  air  at  the  bottom  of 
the  hatchway  so  as  to  resist  the  falling  body,  that  it  had  been 
tested  and  found  effective  for  the  prevention  of  injuries,  that  such 
an  air-cushion  was  then  (at  the  time  when  the  witness  was  testifying) 
used  in  the  defendant's  building,  that  it  was  put  in  in  the  fall  or 
winter  of  1886  after  the  accident  happened.  Defendant  objected  to 
the  statement  that  an  air-cushion  had  been  put  in  after  the  accident; 
the  objection  was  overruled  and  exception  taken. 

The  admission  of  the  testimony,  that  an  air-cushion  was  put  in 
the  elevator  shaft  after  the  happening  of  the  accident  is  the  only 
ground  for  reversal  which  is  presented  to  our  attention  by  appellant's 
counsel.  We  think  that  the  testimony  was  improper  and  should  have 
been  excluded. 

Evidence  of  precautions  taken  after  an  accident  is  apt  to  be  in- 
terpreted by  a  jury  as  an  admission  of  negligence.  The  question  of 
negligence  should  be  determined  by  what  occurred  before  and  at  the 
time  of  the  accident,  and  not  by  what  is  done  after  it.  New  measures 
or  new  devices  adopted  after  an  accident  do  not  necessarily  imply  that 
all  previous  devices  or  measures  were  insufficient.  A  person  operat- 
ing a  passenger  elevator  is  bound  to  avail  himself  of  all  new  inven- 
tions and  improvements  known  to  him,  which  will  contribute  materially 
to  the  safety  of  his  passengers  whenever  the  utility  of  such  improve- 
ments has  been  thoroughly  tested  and  demonstrated  and  their  adop- 
tion is  within  his  power,  so  as  to  be  reasonably  practicable.  For 
this  reason  it  was  proper  to  show  that  a  valuable  device  for  securing 
safety  was  known  to  the  defendant,  and  its  use  neglected  by  him,  be- 
fore the  accident;  but  it  would  seem  unjust  that  he  could  not  take 
additional  precautions  after  the  accident  without  having  his  acts  con- 
strued into  an  admission  of  prior  negligence.  Persons,  to  whose  neg- 
ligence accidents  may  be  attributed,  will  hesitate  about  adopting  such 
changes  as  will  prevent  the  recurrence  of  similar  accidents,  if  they 
are  thereby  to  be  charged  with  an  admission  of  their  responsibility 


492  Cases  on  Evidence 

for  the  past.  The  happening  of  an  accident  may  inspire  a  party  with 
greater  diligence  to  prevent  a  repetition  of  a  similar  occurrence,  but 
the  exercise  of  such  increased  diHgence  ought  not  necessarily  to  be 
regarded  as  tantamount  to  a  confession  of  past  neglect. 

We  are  aware  that  there  is  a  conflict  of  authority  upon  this  sub- 
ject. In  Pennsylvania  evidence  of  precautions  taken  after  the  ac- 
cident has  been  held  competent.  (Penn.  R.  R.  Co.  v.  Henderson,  51 
Penn.  315;  Westchester  &  P.  R.  R.  Co.  v.  McElwee,  67  id.  311; 
McKee  v.  Bidwell,  74  id.  218.)  But  it  has  been  held,  that  such  evi- 
dence is  not  admissible,  in  New  York,  Connecticut,  Iowa  and  Min- 
nesota. (Dougan  v.  Champlaint  Trans.  Co.,  56  N.  Y.  i ;  Baird  v. 
Daly,  68  id.  547;  Salters  v.  Del.  &  H.  C.  Co.,  3  Hun,  338;  Payne  v. 
Troy  &  Boston  R.  R.  Co.,  9  id.  526;  Morrell  v.  Peck,  24  id.  37; 
Cramer  v.  City  of  Burlington,  45  Iowa  627;  Hudson  v.  C.  &  N.  W. 
R'y  Co.,  59  id.  581 ;  Morse  v.  Minneapolis  &  St.  Louis  R'y  Co.,  30 
Minn.  465;  Nalley  v.  Hartford  Carpet  Co.,  51  Conn.  524.) 

In  the  last  case  the  Supreme  Court  of  Connecticut  reviews  the 
cases  in  the  other  States,  and,  in  deciding  against  the  admissibility 
of  such  testimony,  uses  the  following  language:  "If  the  subsequent 
act  is  made  to  reflect  back  upon  the  prior  one,  although  it  is  done 
upon  the  theory  that  it  is  a  mere  admission,  yet  it  virtually  intro- 
duces into  the  transaction  a  new  element  and  test  of  negligence, which 
has  no  business  there,  not  being  in  existence  at  the  time."  Black, 
in  his  work  on  Proof  and  Pleadings  in  Accident  Cases  (page  37,  sec. 
30),  announces,  as  the  result  of  his  examination  of  the  authorities, 
that  "precautions  taken  after  an  accident  are  not,  in  general  admis- 
sible for  the  purpose  of  showing  prior  negligence." 

But  it  is  not  every  error  committed  by  a  trial  court  which  will 
justify  a  reversal  of  the  judgment.  If  it  can  be  plainly  seen  from 
the  record,  that  the  error  ccnnplained  of  could  not  have  possibly 
worked  any  injury  to  the  complaining  party,  and  the  verdict  must 
have  been  what  it  was  in  spite  of  such  error,  then  the  judgment  ought 
not  to  be  reversed.  In  this  particular  case  we  do  not  think  that  the 
admission  of  the  testimony  objected  to  could  have  worked  any  harm 
to  the  defendant. 

Judgment  affirmed. 


^  Res  Inter  Alios  493 

THE  CITY  OF  DELPHI  v.  LOWERY,  Admx. 
74  Ind.  520.     (1881) 

Elliot^  J.  The  questions,  which  the  record  of  this  case  presents, 
arise  upon  the  ruHng  denying  appellant's  motion  for  a  new  trial. 

William  A.  Lowery,  the  appellee's  intestate,  lost  his  life  by  drown- 
ing in  the  Wabash  and  Erie  canal,  at  a  point  within,  or  near,  the 
corporate  limits  of  the  city  of  Delphi.  There  was  evidence  tending 
to  prove  that  the  intestate's  death  was  attributable  to  the  negligence 
of  the  appellant  in  failing  to  place  barricades  about  the  dangerous 
place,  or  to  guard  it  by  signals  or  warnings  of  danger.  There  was 
also  evidence  tending  to  show  that  it  was  the  duty  of  the  city  to 
properly  protect  passengers  from  danger,  inasmuch  as  one  of  the 
public  streets  of  the  city  either  ran  up  to  and  across  the  dangerous 
place  or  terminated  in  very  close  and  direct  proximity  to  that  point. 

Evidence  was  given  by  the  appellee,  that  other  persons  had  received 
injuries  at  the  place  where  the  deceased  was  drowned,  at  times  anterior 
to  his  death.  This  the  appellant  contends  with  vigor  and  ability  was 
erroneous.  There  is  some  conflict  in  the  authorities.  In  Collins  v. 
The  Inhabitants  of  Dorchester,  6  Gush.  396,  such  evidence  was 
declared  incompetent.  It  was  said  to  be  "Testimony  concerning 
collateral  facts,  which  furnished  no  legal  presumption  as  to  the  prin- 
cipal facts  in  dispute,  and  which  the  defendants  were  not  bound  to 
be  prepared  to  meet."  In  support  of  the  conclusion  of  the  court, 
the  following  authorities  were  cited:  Standish  v.  Washburn,  21  Pick. 
237 ;  2  Stark.  Ev.  381 ;  i  Greenl.  Ev.  sees.  52,  448.  The  cases  of 
Aldrich  v.  Pelham,  i  Gray  510;  Kidder  v.  Dunstable,  ii  Gray,  342; 
Blair  v.  Pelham,  118  Mass.  420,  assert  substantially  the  same  doctrine 
as  Collins  v.  Dorchester,  supra. 

In  Darling  v.  Westmoreland,  52  N.  H.  401,  the  doctrine  of  Col- 
lins v.  Dorchester  is  vigorously  assailed  in  an  unusually  able  and 
elaborate  opinion,  and  the  opposite  doctrine  declared  to  be  correct, 
both  upon  reason  and  authority.  In  the  recent  case  of  Moore  v.  The 
City  of  Burlington,  49  Iowa  136,  the  court  adopted  in  effect,  although 
not  expressly,  the  rule  declared  in  the  New  Hampshire  case.  The 
Supreme  Court  of  Illinois,  declared,  in  the  case  of  The  City  of  Chi- 
cago v.  Powers,  42  111.  169,  that  such  evidence  was  competent.  It 
was  said  in  that  case :  "It  is  insisted  that  the  court  erred  in  admit- 
ing  evidence  that  another  person  had  fallen  through  the  same  bridge. 
If   this   evidence   was   admissible   for   any  purpose  then   it  was   not 


494  Cases  on  Evidence 

error.  The  action  was  based  upon  the  negh'gence  of  the  city  in  fail- 
ing to  keep  the  bridge  properly  Hghted.  If  another  person  had  met 
with  a  similar  fate,  at  the  same  place,  and  from  a  like  cause,  it  would 
tend  to  show  a  knowledge  on  the  part  of  the  city,  that  there  was  inat- 
tention on  the  part  of  their  agents  having  the  charge  of  the  bridge, 
and  that  they  failed  to  provide  further  means  for  the  protection  of 
persons  crossing  on  the  bridge.  As  it  tended  to  prove  this  fact,  it 
was  admissible;  and,  if  appellants  had  desired  to  guard  against  its 
improper  application  by  the  jury,  they  should  have  asked  an  in- 
struction limiting  it  to  its  legitimate  purpose."  In  Kent  v.  The  Town 
of  Lincoln,  32  Vt.  591  it  was  held  competent  to  prove  that  other 
persons  than  the  complainant  had,  at  previous  times,  been  injured  by 
the  same  defect  in  a  highway.  A  similar  ruling  was  made  in  the 
case  of  Quinlan  v.  The  City  of  Utica,  11  Hun  217.  This  case  was 
affirmed  without  comment  by  the  Court  of  Appeals,  74  N.  Y.  603. 
In  the  City  of  Augusta  v.  Hafers,  61  Ga.  48,  S.  C.  34  Am.  R.  95,  the 
doctrine  maintained  by  the  cases  cited  was  declared  and  enforced. 
The  Supreme  Court  of  the  United  States,  in  The  Grand  Trunk  R.  R. 
Co.  V.  Richardson,  91  U.  S.  454,  held  that  it  was  competent  for  the 
plaintiff,  in  an  action  for  injury  resulting  from  fire  communicated  by 
the  locomotives  of  a  railway  company,  to  prove  that,  during  the  summer 
preceding  the  burning  of  the  plaintiff's  property,  fire  was  often  scat- 
tered from  the  locomotives  of  the  defendant  when  passing  plaintiff's 
property.  In  Hoyt  v.  Jeffers,  30  Mich.  181,  it  was  held  proper  to 
prove  that  sparks  had,  at  other  times  than  that  on  which  the  injury 
sued  for  occurred  been  emitted  from  a  chimney.  The  doctrine  of 
the  cases  cited  is  supported  by  many  adjudicated  cases,  among  them : 
Aldridge  v.  The  Great  Western  R.  W.  Co.,  3  M.  &  G.  515;  Huyet 
V.  Philadelphia,  etc.,  R.  R.  Co.,  23  Pa.  St.  373 ;  St.  Joseph,  etc.,  R.  R. 
Co.  V.  Chase,  11  Kan.  47;  Longabaugh  v.  The  Virginia  City,  etc., 
R.  R.  Co.,  9  Nev.  271 ;  Penn.  R.  R.  Co.  v.  Stranahan,  79  Pa.  405 ; 
Annapolis,  etc.,  R.  R.  Co.  v.  Gratt,  39  Md.  115;  Dougan  v.  Champlain, 
etc.,  Co.,  56  N.  Y.  i;  Field  v.  The  New  York,  etc.,  R.  R.  Co.,  32 
N.  Y.  339. 

This  court  has  adopted  and  enforced  this  doctrine.  In  the  case 
of  The  Pittsburgh,  etc.,  R.  W.  Co.  v.  Ruby,  38  Ind.  294,  this  question 
was  exhaustively  discussed,  and  the  point  expressly  ruled.  It  was  there 
held  that  evidence  of  specific  facts  was  competent  for  the  purpose  of 
charging  the  corporation  with  notice.  We  are  unable  to  perceive  any 
difference  in  principle  between  the  case  in  hand  and  the  class  of 
cases  of  which  those  last  cited  are  types.    If  specific  acts  are  proper 


Res  Inter  Alios  495 

for  the  purpose  of  showing  notice  to  the  owners  of  machinery  or 
the  employers  of  servants,  it  must  be  competent  for  the  purpose  of 
showing  notice  to  a  municipal  corporation,  that  there  is  a  dangerous 
place  within  or  very  near  the  limits  of  the  highway.  The  cases  direct- 
ly ruling  the  point  here  under  immediate  mention  outweigh  the  cases 
in  Massachusetts,  for  the  latter  are  built  all  upon  a  single  and  not 
very  well  considered  case.  The  doctrine  of  the  cases  in  that  court 
cannot  be  reconciled  with  the  doctrine  of  the  class  of  cases  represented 
by  The  Pittsburg,  etc.,  R.  R,  Co.  This  last  doctrine  has  been  recog- 
nized as  sound  by  the  Supreme  Court  of  Massachusetts,  and  that 
court,  able  and  distinguished  as  it  confessedly  is,  has,  it  seems  to  us, 
thus  sanctioned  a  doctrine  inconsistent  with  that  of  Collins  v.  Dor- 
chester. Gahagan  v.  Boston,  etc.,  R.  R.  Co.,  i  Allen  187;  Ross  v. 
Boston,  etc.,  R.  R.  Co.,  6  Allen  87.  It  also  seems  to  us  that  the  doc- 
trine of  Collins  V.  Dorchester  can  not  be  harmonized  with  Crosby 
V.  Boston,  118  Mass.  71,  but  we  deem  it  unnecessary  to  prolong  this 
opinion  by  a  discussion  of  the  conflict  between  these  two  cases. 

Reversed  on  another  ground. 


COPPERMAN  V.  PEOPLE. 
56  N.  Y.  591.     (1874) 

Church,  C.  J.  The  plaintiflF  in  error  was  convicted  of  receiving 
property,  knowing  it  to  have  been  stolen.  He  was  a  pawnbroker, 
and  seems  to  have  been  a  man  of  fair  standing  and  reputation.  We 
are  restricted  to  a  consideration  of  the  legal  questions  presented. 

The  alleged  offense,  for  which  the  prisoner  was  indicted,  was  com- 
mitted on  the  30th  of  June,  187 1,  and  consisted  of  receiving  two  par- 
cels of  sewing  silk,  of  about  one  pound  each,  of  one  Robinson,  who 
had  stolen  the  same  from  the  store  of  Gardner  &  Co.  Robinson  was 
the  principal  witness  for  the  people.  He  was,  and  had  been  for  a  con- 
siderable period,  a  clerk  in  the  store  of  Gardner  &  Co.,  and  testified 
that  he  stole  the  silk  in  question  from  his  employers'  store  and  sold 
it  to  the  prisoner  for  six  dollars,  its  real  value  being  $17.50.  He 
also  testified  that  he  had,  on  ten  or  twelve  previous  occasions  during 
the  preceding  year,  stolen  similar  goods  from  his  employers,  and  on 
the  first  two  occasions  pawned  the  goods,  and  afterwards  sold  the 
pawn  tickets  to  the  prisoner,  and  on  the  other  occasions  sold  the  prop- 


49^  Cases  on  Evidence 

erty  in  the  first  instance  to  him,  and  in  all  cases  at  about  the  same 
sum  proportionate  to  the  value  of  the  property.  The  evidence  as  to 
prior  transactions  was  given  and  received  upon  the  question  of  guilty 
knowledge,  and  the  exceptions  relate  to  the  ruling  of  the  court,  of 
what  was  said  and  done  upon  these  occasions.  It  is  a  general  rule, 
and  one  that  should  be  strictly  observed,  that  it  is  incompetent  upon 
the  trial  for  one  offense  to  prove  that  the  accused  has  committed 
another  not  connected  with  it.  Nor  can  particular  acts  of  crimi- 
nality or  immorality  not  connected  with  the  facts  constituting  the  crime 
for  which  the  accused  is  being  tried  be  thrown  into  the  scale  against 
him,  to  prejudice  the  jury  or  create  a  probability  of  guilt.  An  ap- 
parent exception  to  this  rule  exists  in  cases  where  knowledge  of  some 
particular  fact  is  an  ingredient  of  the  crime,  and  must  be  affirma- 
tively proved.  It  may  be  doubted  whether  such  evidence  should  be 
called  an  exception  to  the  general  rule.  Although  facts  may  be 
proved  not  connected  with  the  transaction  constituting  the  crime,  to 
establish  guilty  knowledge,  yet  they  may  be  regarded  as  competent 
because  they  tend  directly  to  prove  an  essential  element  of  the  crime, 
to-wit,  knowledge  of  a  given  fact.  A  familiar  instance  is  the  case 
of  passing  forged  bills  or  notes.  The  passing  a  counterfeit  bank  bill 
is  not,  per  se,  a  crime,  but  it  is  essential  that  the  person  should  know 
that  it  is  counterfeit,  and  hence  it  has  been  held  competent  to  show 
that  he  had  passed  on  other  occasions,  or  had  in  his  possession, 
similar  bills,  because  such  evidence  bears  directly  upon  his  knowledge 
of  the  character  of  the  bill  passed,  for  which  he  is  indicted;  but  the 
strength  of  such  evidence  depends  upon  the  number  of  other  bills, 
and  all  the  circumstances  connecting  him  with  them.  So  it  is  not 
per  se  criminal  to  receive  stolen  property,  but  it  is  a  crime  to  receive 
it  knowing  it  to  have  been  stolen.  There  may  be  circumstances  at- 
tending the  receipt  of  the  property  from  which  alone  an  inference  of 
such  knowledge  might  be  properly  made,  and  within  certain  restric- 
tions it  has  been  established,  and,  I  think,  properly,  that  the  receiving 
of  other  similar  property  from  the  same  person,  with  a  guilty  knowl- 
edge, may  be  given  in.  evidence  upon  the  question.  I  agree  with  the 
learned  counsel  for  the  prisoner,  that  guilty  knowledge  is  a  delicate 
question,  and  I  concur  fully  with  the  position  that  courts  should  be 
cautious  in  receiving  evidence  of  outside  facts  upon  that  question, 
and  that  all  facts  which  do  not  directly  bear  upon  the  question  should 
be  excluded.  In  the  Coleman  case,  55  N.  Y.  81,  recently  decided  by 
this  court,  it  was  intended  to  lay  down  a  strict  nile  upon  this  subject, 
but  the  principle  was  recognized  that  such  evidence  may  be  admissible. 


Res  Inter  Alios  '  497 

In  the  Oddy's  Case  (2  Dennison  C.  C.  272),  cited  by  the  counsel  for 
the  accused,  the  offer  was  to  prove  that  the  prisoner  had  other  stolen 
property  in  his  possession.  This  was  clearly  incompetent,  for  the 
reason  stated  by  Campbell,  Ch.  J.,  that  "it  would  not  be  direct  evi- 
dence of  the  particular  fact  in  issue,  viz.,  that  at  the  time  of  his  re- 
ceiving specific  articles  he  knew  them  to  be  stolen."  Nor  would  it 
legitimately  tend  to  prove  that  the  accused  knew  that  an  article  re- 
ceived of  one  person  today  was  stolen,  by  showing  that  on  some  other 
occasion  he  received  another  article  from  another  person,  not  con- 
nected with  the  first,  knowing  it  to  have  been  stolen.  Such  evidence 
only  tends  to  create  vague  and  uncertain  probabilities.  But  if  a 
person  has  frequently  received  articles  of  property  of  a  particular 
kind  from  another,  knowing  that  such  other  person  stole  them  from 
a  particular  person  or  place,  and  he  is  offered  on  a  subsequent  occa- 
sion similar  articles  by  the  same  person  and  under  like  circumstances, 
it  does  directly  tend  to  establish  that  the  articles  thus  offered  were 
also  known  to  be  stolen.  It  is  a  natural  and  necessary  inference, 
and  one  which  every  reasonable  man  would  draw.  It  is  an  inference 
derived  from  the  laws  of  human  action.  The  rule  adopted  in  Reg. 
V.  Dunn  (i  Moody  C.  C.  146)  was  approved  in  the  Coleman  case  and 
we  see  no  reason  to  disturb  it. 

Judgment  affirmed. 


COMMONWEALTH  v.  MERRIAM. 
31  Mass.  518.     (1833) 

Indictment  for  adultery  committed  by  the  defendant  with  Cynthia 
Blood,  in  January,  1830. 

At  the  trial  in  the  Common  Pleas,  before  Strong,  J.,  the  marriage 
of  the  defendant  with  Betsy  Merriam,  who  was  living,  was  first 
proved.  Johnathan  Snow,  a  witness  on  the  part  of  the  Common- 
wealth, then  testified  that  in  February,  1830,  between  nine  and  ten 
o'clock  in  the  evening,  he  was  passing  the  defendant's  house,  and 
seeing  a  light,  he  stepped  up  to  the  window  and  looked  in ;  that  he 
saw  the  defendant  in  bed ;  that  Cynthia  Blood  came  in,  undressed  her- 
self and  got  into  the  same  bed;  and  that  soon  after  the  defendant 
blew  out  the  light. 

Snow  and  two  other  witnesses  testified  respectively  to  three  in- 


498  Cases  on  Evidunce 

stances  of  improper  familiarity  between  the  defendant  and  Cynthia 
Blood,  one  of  which  was  about  a  fortnight  and  the  others  within  a 
year  before  the  adultery  proved  as  above  mentioned. 

Many  witnesses  were  called  to  impeach  Snow's  general  character 
for  veracity,  and  many  to  support  it  in  that  particular. 

The  evidence  of  improper  familiarities  was  objected  to,  as  not 
tending  to  prove  the  act  of  adultery  to  have  been  committed  on  the 
night  when  Snow  testified  he  saw  Cynthia  Blood  get  into  the  bed 
where  the  defendant  lay.  But  the  judge  permitted  the  evidence  to 
go  to  the  jury,  upon  the  ground  that  instances  of  improper  intimacy 
or  familiarity  between  Cynthia  Blood  and  the  defendant,  happening 
a  short  time  previously  to  the  time  when  the  crime  was  charged  to 
have  been  committed,  were  competent  evidence.  To  this  opinion  the 
defendant  filed  exceptions. 

Putnam,  J.  delivered  the  opinion  of  the  court.  Evidence  should 
be  excluded  which  tends  only  to  the  proof  of  collateral  facts.  It 
should  be  admitted  if  it  has  a  natural  tendency  to  establish  the  fact 
in  controversy.  If  the  evidence  is  irrelevant,  it  should  be  rejected 
for  two  reasons :  i.  It  would  have  a  tendency  to  mislead  the  jury 
from  the  true  subject  of  the  inquiry ;  and  2.  No  man  is  to  be  expected 
to  go  on  trial  prepared  to  prove  things  which  are  unconnected  with 
the  issue. 

The  issue  upon  this  indictment  was,  whether  or  not  the  defendant 
had  committed  adultery  with  Cynthia  Blood.  The  government  offered 
the  testimony  of  Jonathan  Snow,  to  prove  that  the  offense  was  com- 
mitted with  her  in  February,  1830.  The  particular  day  set  forth  in 
the  indictment  was  immaterial;  the  offense  might  have  been  proved 
on  that,  or  any  other  day  prior  to  the  caption  of  the  indictment. 

The  evidence,  from  the  nature  of  the  offense,  must  generally  be 
circumstantial.  If  the  facts  stated  by  Snow,  are  true,  there  could  be 
no  reasonable  doubt  of  the  guilt  of  the  defendant. 

But  Snow's  general  character  for  truth  was  impeached  by  the  de- 
fendant and.  it  was  supported  by  the  government.  And  the  court  ad- 
mitted evidence  of  other  instances  of  improper  intimacy  between 
Cynthia  Blood  and  the  defendant,  happening  a  short  time  before  Feb- 
ruary, 1830,  as  having  a  tendency  to  corroborate  the  testimony  of 
Snow,  in  regard  to  the  intercourse  which  he  testified  had  taken  place 
between  those  persons.  To  the  admission  of  such  evidence  the  de- 
fendant objected,  and  the  question  is  whether  it  was  competent. 

It  was  argued  that  the  defendant  was  not  to  be  put  upon  his  trial 
for  every  act  of  his  life,  but  for  a  particular  offense.     Be  it  so;  if 


Res  Inter  Alios  499 

the  evidence  which  was  received,  has  a  natural  tendency  to  corrob- 
orate other  direct  evidence  in  the  case,  it  would  seem  to  be  clearly 
admissible. 

In  9  Petersdorff,  149,  note,  there  are  some  cases  which  illustrate 
this  subject.  Thus,  in  prosecutions  for  uttering  counterfeit  money, 
evidence  that  the  defendant  had  previously  uttered  other  counter- 
feits, or  that  he  had  others  in  his  possession,  is  admissible.  Evidence 
of  this  kind  has  uniformly  been  received  as  tending  to  show  the 
scienter.  So  where  several  were  indicted  for  a  conspiracy  to  carry 
on  the  business  of  common  cheats,  it  may  be  proved  that  similar  false 
representations  had  been  made  by  the  prisoner  to  others  who  were 
in  business  but  who  were  not  named  in  the  record. 

So  upon  an  issue  out  of  chancery  to  try  a  question  of  illegitimacy, 
after  probable  evidence  of  non-access,  evidence  may  be  given  that 
the  mother  was  of  bad  character.  The  husband  and  wife  had  lived 
apart,  she  in  London,  he  in  Staffordshire,  and  the  plaintiff  was  born 
three  years  after  the  separation.  Chief  Justice  Raymond  allowed 
evidence  that  the  mother  was  of  bad  fame  to  rebut  the  presumption 
of  legitimacy,  and  the  jury  found  the  plaintiff  to  be  illegitimate. 
Pendrell  v.  Pendrell,  2  Str.  925. 

In  the  case  at  bar,  after  hearing  all  the  evidence  concerning  the 
general  character  of  the  witness  Snow,  we  think  the  government  might 
properly  introduce  the  evidence  which  was  objected  to.  The  circum- 
stances thus  proved  were  such  as  naturally  excite  in  the  mind  a  belief 
that  a  woman  who  would  so  conduct  herself,  would  be  more  likely 
to  commit  the  fact  alleged  against  her,  than  if  her  deportment  had 
been  modest  and  discreet. 

We  all  think  that  the  objections  made  by  the  counsel  for  the  de- 
fendant cannot  prevail,  and  that  the  defendant  must  receive  sentence 
in  pursuance  of  the  verdict. 


COMMONWEALTH  v.  BRADFORD. 

126  Mass.  42.     (18/8) 

CoLT^  J.  The  defendant  was  indicted  for  wilfully  and  maliciously 
burning  a  building  belonging  to  his  two  sons.  The  second  count  in 
the  indictment  charges  an  intent  thereby  to  defraud  the  insurer.  At 
the  trial  evidence  was  admitted  to  support  the  indictment,  against  the 


500  Cases  on  EvroENCE 

defendant's  objection,  tending  to  prove  that  the  defendant  set  fire 
to  the  same  mill  a  few  nights  before,  and  that  the  fire  was  then  dis- 
covered and  extinguished  by  a  neighbor. 

The  evidence  was  competent  on  the  question  of  the  intent  with 
which  the  defendant  subsequently  burned  the  building,  and  committed 
the  offense  for  which  he  was  then  tried.  It  was  carefully  limited 
to  the  single  purpose  for  which  it  was  competent.  The  unsuccessful 
attempt  to  do  the  same  thing,  a  few  days  before,  was  evidence  that 
the  burning  was  wilful  and  intentional,  and  not  the  result  of  accident 
or  negligence  on  the  part  of  the  defendant.  It  was  sufficiently  near 
to  the  time  of  the  commission  of  the  offense  charged,  to  justify  the 
inference  that  the  defendant  then  had  a  settled  purpose  in  regard  to 
it.  It  is  a  rule  of  criminal  law,  that  evidence  tending  to  prove  a 
similar  but  distinct  offense,  for  the  purpose  of  raising  an  inference 
or  presumption  that  the  accused  committed  the  particular  act  with 
which  he  is  charged,  is  not  admissible.  But  there  was  no  invasion  of 
this  rule  in  the  admission  of  this  evidence.  The  intent  and  disposi- 
tion with  which  one  does  a  particular  act  must  be  ascertained  from 
his  acts  and  declarations  before  and  at  the  time ;  and  when  a  previous 
act  indicates  an  existing  purpose,  which  from  known  rules  of  human 
conduct  may  fairly  be  presumed  to  continue  and  control  the  defendant 
in  the  doing  of  the  act  in  question,  it  is  admissible  in  evidence.  In 
many  cases  it  is  the  only  way  in  which  criminal  intent  can  be  proved ; 
and  the  evidence  is  not  to  be  rejected  because  it  might  also  prove 
another  crime  against  the  defendant.  The  practical  limit  to  its  ad- 
mission is,  that  it  must  be  sufficiently  significant  in  character,  and 
sufficiently  near  in  point  of  time,  to  afford  a  presumption  that  the 
element  sought  to  be  established  existed  at  the  time  of  the  commission 
of  the  offense  charged.  The  limit  is  largely  in  the  discretion  of  the 
judge,  and  no  error  in  law  is  here  apparent. 

Exceptions  overruled. 


TOLL  V.  STATE. 
40  Fla.  i6g.     (i8p8) 


Carter,  J.  Plaintiff  in  error-  was  convicted  in  the  Criminal  Court 
of  Record  of  Duval  county  upon  an  information  charging  "that  one 
Albert  C.  Toll,  of  the  county  of  Duval  and  State  of  Florida,  on  the 


Res  Inter  Alios  501 

1st  day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven,  and  on  divers  days  and  dates  between  said  date 
and  the  9th  day  of  August,  A.  D.  1897,  in  the  county  and  state  afore- 
said, did  then  and  there  unlawfully  and  feloniously  have,  keep,  exer- 
cise and  maintain  a  gaming  room  and  gaming  house  in  the  city  of 
Jacksonville  for  the  purpose  of  gaming  and  gambling,  contrary,"  etc. 
The  information  was  filed  August  24,  1897,  and  the  trial  was  begun 
September  2,  1897. 

The  court  refused  to  strike  out  certain  evidence  tending  to  show 
that  defendant  kept  a  gaming  room  prior  and  subsequent  to  the  time 
laid  in  the  information.  It  is  insisted  that  the  oflfense  of  having,  keep- 
ing and  maintaining  a  gaming  room,  is  a  continuing  one;  that  it  was 
so  charged  in  the  information,  and  that  evidence  of  acts  tending  to 
prove  it  occurred  prior  and  subsequent  to  the  time  laid  in  the  infor- 
mation was  inadmissible.  Assuming,  but  not  deciding,  that  the  offense 
charged  is  a  continuing  one,  we  think  the  motion  to  strike  was  prop- 
erly refused.  There  was  evidence  that  defendant  kept  a  gaming 
room,  or  a  room  for  that  purpose,  within  the  time  laid  in  the  indict- 
ment. In  Brevaldo  v.  State,  21  Fla.  789,  we  held  that  upon  an  indict- 
ment for  living  in  an  open  state  of  adultery  on  a  certain  day,  and 
on  divers  other  days  and  times  since  said  ddte  to  the  date  of  the  find- 
ing of  the  indictment,  evidence  of  acts  anterior  to  such  time  are  (is) 
admissible  in  evidence  as  tending  to  illustrate  or  explain  similar  acts 
within  the  period  laid  in  the  indictment,  or  to  corroborate  testimony  of 
such  latter  actp,  but  not  to  convict  of  a  substantive  offense  committed 
anterior  to  such  period.  We  think  the  rule  stated^ in  the  Brevaldo  case 
is  applicable  to  all  continuing  offenses,  and  where  there  is  evidence  of 
acts  constituting  the  offense  committed  within  the  period  laid  in  the  in- 
dictment, evidence  of  acts  committed  prior  or  subsequent  thereto  be- 
fore the  finding  of  the  indictment  are  admissible  when  they  illustrate, 
explain  or  corroborate  evidence  of  acts  shown  by  the  evidence  to 
have  been  committed  within  the  period  named. 

The  judgment  of  the  court  below  is  affirmed., 


502  Cases  on  Evidence 

PROVISION  CO.  V.  CITY  OF  CHICAGO. 

Ill  III.  651.    (1884) 

Mr.  Chief  Justice  Scholfield  delivered  the  opinion  of  the  court : 
This  was  an  action  on  the  case  by  appellant,  against  appellees, 
for  damages  sustained  to  property  in  consequence  of  the  construc- 
tion of  a  viaduct,  in  Eighteenth  street,  over  the  tracks  of  the  Pitts- 
burgh, Fort  Wayne  and  Chicago  Railway  Company.  Judgment  was 
rendered  in  the  trial  court,  in  favor  of  appellant,  against  the  city  of 
Chicago  .alone,  for  $5,000,  and  that  judgment,  having  been  affirmed 
on  appeal  to  the  Appellate  Court  for  the  First  District,  is  brought 
before  us,  by  the  present  appeal  for  review. 

It  is  contended  the  Superior  Court  erroneously  allowed  the  witness 
Pierce  to  testify  as  to  the  price  for  which  a  certain  lot  or  piece  of 
property  was  sold,  without  testifying  as  to  the  value  of  that  lot  or 
of  that  here  affected;  and  the  witness  Crawford  to  testify  as  to 
amounts  paid  by  the  Western  Indiana  Railroad  Company  for  lots 
lying  east  of  the  Chicago  river.  It  does  not  appear  that  this  prop- 
erty had  a  regular  market  value,  like  a  commercial  article,  and  mere 
opinions  of  its  value  are  shown,  by  the  evidence  preserved,  to  be  as 
variant  as  the  different  tastes  and  fancies  of  the  witnesses.  From  the 
very  necessities  of  the  case,  actual  sales  of  property  in  the  vicinity, 
and  near  the  time,  are  competent  evidence,  as  far  as  they  go.  On 
cross-examination,  all  circumstances  can  be  drawn  out,  showing  that 
the  given  sale  fails,  and  how  much  of  being  a  fair  criterion  of  value. 
We  think  there  was  no  error  in  the  admission  of  this  evidence.  (St. 
Louis,  VandaHa  and  Terre  Haute  Railroad  Co.  v.  Haller,  82  111.  208; 
White  v.  Hermann,  51  id.  243;  Chicago  and  Western  Indiana  Rail- 
road Co.  v.  Maroney,  95  id.  179.)  It  is  much  less  likely  that  such 
evidence  can  have  produced  harm  in  cases  like  the  present,  where,  as 
was  here  done,  the  jurors  themselves  visit  the  property  and  form  their 
opinions. 

Judgment  affirmed. 


Telegrams  and  Conversations  by  Telephone  503 

TELEGEAMS  AND  CONVERSATIONS  BY  TELEPHONE.i 

OSKAMP  V.  GADSDEN. 

J5  Neb.  7.     (1892) 

,  Norval,  J.  Plaintiffs  in  error  brought  suit  in  the  court  below  to 
recover  damages  for  the  alleged  breach  of  contract  by  the  defendant 
in  his  refusing  to  deliver  a  quantity  of  hay  claimed  to  have  been 
purchased  by  them  from  him.  The  jury  returned  a  verdict  for  de- 
fendant, upon  which  judgment  was  entered. 

Error  is  assigned  because  the  court  admitted  the  testimony  of  the 
defendant  as  to  the  conversation  over  the  telephone  between  the 
witness  and  Mr.  Haines,  one  of  the  plaintiffs,  as  repeated  over  the 
wire  by  Mrs.  Cummings,  the  telephone  operator  at  Fremont.  .  It  is 
contended  that  the  testimony  of  the  witness,  of  what  the  operator 
repeated  to  him  as  the  conversation  progressed  as  being  said  by  Mr. 
Haines,  is  irrelevant  and  hearsay.  The  question  thus  presented  is 
a  new  one  to  this  court  and  there  are  but  few  decided  cases  which 
aid  us  in  our  investigation.  Upon  principle,  it  seems  to  us  that  the 
testimony  is  competent  and  its  admission  violated  no  rule  of  evidence. 

It  was'  admissible  on  the  grounds  of  agency.  The  operator  at 
Fremont  was  the  agent  of  defendant  in  communicating  defendant's 
message  to  Haines,  and  she  was  the  latter's  agent  in  transmitting  or 
reporting  his  answer  thereto  to  defendant.  The  books  on  evidence, 
as  well  as  the  adjudicated  cases,  lay  down  the  rule  that  the  state- 
ments of  an  agent  within  the  line  of  his  authority  are  admissible  in 
evidence  against  his  principal.  Likewise  it  has  been  'held  that  when 
a  conversation  is  carried  on  between  persons  of  different  nation- 
alities through  an  interpreter,  the  statement  made  by  the  latter  at 
the  time  the  conversation  occurred  as  to  what  was  then  said  by  the 
parties  is  competent  evidence  and  may  be  proven  by  calling  persons 
who  were  present  and  heard  it.  This  is  too  well  settled  to  require 
the  citation  of  authorities.  There  are  certainly  stronger  reasons  for 
holding  the  statement  made  by  the  operator  and  testified  to  by  de- 
fendant is  admissible  than  in  the  case  of  an  interpreter.  Both  Haines 
and  defendant  heard  and  understood  the  operator  at  Fremont  and 
knew  what  she  was  saying,  or  at  least  could  have  done  so.  Each 
knew  whether  his  message  was  being  correctly  repeated  to  the  other 
by  the  operator.  Not  so  where  persons  converse  through  an  inter- 
preter. 


1  Hughes'  Pocket  Digest  of  Evidence,  pp.  424,  428. 


i,u4  Cases  on  Evidence 

If  the  testimony  objected  to  was  incompetent  and  hearsay,  then 
the  testimony  of  Haines,  relating  to  the  same  conversation  should, 
for  the  same  reason,  have  been  excluded.  He  did  not  hear  what  de- 
fendant said,  but  testified  to  what  the  operator  reported  as  having 
been  said.  The  operator  at  Fremont  was  nqt  the  agent  of  the  defend- 
ant alone,  but  she  was  plaintiff's  agent  in  repeating  their  answer  to 
defendant's  message. 

That  conversations  held  through  the  medium  of  the  telephone  are 
admissible  as  evidence  in  proper  cases,  cannot  be  doubted.  Such 
have  been  the  holdings  of  the  courts  in  cases  where  the  question 
has  been  before  them.  In  a  criminal  case.  People  v.  Ward,  3  N.  Y. 
Crim.  Rep.  483,  it  was  held  that  where  a  witness  testifies  that  he 
conversed  with  a  particular  person  over  the  telephone  and  recognized 
his  voice,  it  was  competent  for  him  to  state  the  communication  which 
he  made. 

In  Wolfe  V.  M.  P.  R.  Co.,  97  Mo.  473,  it  was  ruled  that  if  the 
voice  was  not  identified  or  recognized,  but  the  conversation  is  held 
through  a  telephone  kept  in  a  business  house  or  office,  it  is  admissible 
the  eflPect  or  weight  of  such  evidence,  when  admitted,  to  be  deter- 
mined by  the  jury.     (See  Globe  Printing  Co.  v.  Stahl,  23  Mo.  App. 

45I-) 

Our  conclusion  is  that  the  court  did  not  err  in  admitting  the  tes- 
timony of  the  defendant. 

Affirmed. 


NICKERSON  V.  SPINDELL. 
164  Mass.  25.     (i8p5) 

Knowlton,  J.  There  was  evidence  to  show  that  the  plaintiff  per- 
formed the  services  and  incurred  the  expenses  set  out  in  his  declara- 
tion, in  superintending  the  building  of  a  steamer  for  the  defendants 
and  others  who  were  the  owners  of  her,  and  that  he  did  this  at  the 
request  of  the  defendant  Spindell,  who  was  the  managing  agent  of 
the  owners. 

When  the  sender  of  a  telegraphic  message  takes  the  initiative,  the 
message  as  delivered  may,  as  between  him  and  the  person  to  whom 
it  is  sent,  be  treated  as  the  original,  in  the  absence  of  evidence  to 


Tei^egrams  and  Conversations  by  TeivEphone  505 

show  mistake  in  the  transmission  of  it.  Whether  we  should  go  further 
and  hold  that  the  telegraph  company  is  so  far  the  agent  of  the  sender 
as  to  bind  him  by  their  errors  in  sending  it,  it  is  unnecessary  in  this 
case  to  decide.  There  is  much  authority  in  support  of  this  last  propo- 
sition, although  the  contra'ry  has  been  held  in  England.  There  was 
no  error  in  the  admission  of  the  testimony.  See  Durkee  v.  Ver- 
mont Central  Railroad,  29  Vt.  127;  Saveland  v.  Green,  40  Wis.  431; 
New  York  &•  Washington  Printing  Telegraph  Co.  v.  Dryburg,  35 
Penn.  St.  298;  Wilson  v.  Minneapolis  &  Northwestern  Railroad,  31 
Minn.  481 ;  Anheuser-Busch  Brewing  Association  v.  Hutmacher,  127 
111.  652,  658;  Western  Union  Telegraph  Co.  v.  Shotter,  71  Ga.  760; 
Howley  v.  Whipple,  48  N.  H.  487;  State  v.  Hopkins,  50  Vt.  316; 
Smith  V.  Easton,  54  Md.  138;  Henkel  v.  Pape,  L.  R.  6  Ex.  7. 

,  Exceptions  overruled. 


WILSON  V.  COLEMAN  &  RAY. 
81  Ga.  297.     (1888) 

Blandi^ord,  Justice.  Coleman  &  Ray  sued  Wilson  for  failing  to 
deliver  to  them  three  car-loads  of  Texas  rust-proof  oats,  which,  they 
alleged,  they  had  purchased  from  Wilson,  and  which  he  had  agreed 
to  deliver  to  them  at  a  specified  time.  A  recovery  was  had  by  the 
plaintiffs,  and  the  defendant  moved  for  a  new  trial,  which  was  refused, 
and  he  excepted. 

Another  ground  of  exception  is,  that  the  court  allowed  Coleman 
to  testify  as  to  the  demand  made  by  his  clerk,  through  the  telephone, 
on  Wilson  for  the  oats,  and  Wilson's  reply  as  repeated  to  him  by 
the  clerk.  This  evidence  was  merely  hearsay,  and  the  court  erred  in 
admitting  it;  but  there  is  plenty  of  evidence  in  the  record  to  sustain 
the  verdict,  and  we  will  not  send  the  case  back  for  an  error  of  this 
kind,  it  being  immaterial  in  the  view  we  take  of  the  case.  We  think 
the  court  was   right  in  refusing  a  new  trial;  and  the  judgment  is 

Affirmed. 


5o6  Cases  on  Evidence 

SMITH  AND  WHITING  v.  EASTON. 
34  Md.  138.     (1880) 

Brent,  J,,  delivered  the  opinion  of  the  court. 

The  question  raised  is  the  admissibiHty  in  evidence  of  the  dispatch 
purporting  to  come  from  New  York,  and  oflFered  for  the  purpose  of 
binding  the  appellee  as  promisor  to  endorsee. 

The  appellants  proved  under  a  commission  to  New  York  City,  on 
April  5th,  1878,  that  all  the  messages  sent  from,  and  receipts  for  mes- 
sages delivered  from  the  office  in  that  city,  on  February  i6th,  1875, 
had  been  destroyed. 

The  message,  if  any,  sent  by  James  T.  Easton,  to  that  office,  to  be 
transmitted  to  Chesapeake  City,  was  the  original  (Scott  &  Jarnagin, 
Law  of  Tel.,  sec.  357,  and  authorities  there  cited,)  and  not  the  mes- 
sage which  was  received  over  the  wires  at  Chesapeake  City.  The 
latter  must  be  considered  as  a  copy  (Ibid.  sec.  361,)  and  carries  with 
it  none  of  the  qualities  of  primary  evidence.  Ordinarily  the  usual 
course  is  to  show  the  delivery  of  the  original  message  of  the  party, 
sought  to  be  charged,  at  the  office  from  which  it  is  to  be  telegraphed, 
and  then  show  that  it  was  transmitted  and  delivered  at  the  place  of 
its  destination.  But  even  where  the  original  is  produced  its  authen- 
ticity must  be  established.  And  this  either  by  proof  of  the  hand-writ- 
ing, or  by  other  proof  establishing  its  genuineness.  The  destruction  of 
all  the  messages  sent  from  the  office,  on  the  day  named,  is  sufficient 
foundation  for  the  admissibility  of  secondary  evidence.  But  this  sec- 
ondary evidence  can  only  be  admitted  upon  proof  that  the  copy  offered 
is  a  correct  transcript  of  a  message  actually  authorized  by  the  party 
sought  to  be  affected  by  its  contents. 

In  Howley  v.  Whipple,  and  others,  48  N.  H.  487,  a  messa'ge  was 
sent  by  telegraph  to  Montreal,  and  an  answer  was  very  soon  received, 
purporting  to  come  from  the  party  to  whom  the  message  was  ad- 
dressed, and  to  be  sent  from  Montreal.  The  court  refused  to  admit 
it,  without  proof  that  it  was  in  fact  sent  by  the  proper  party.  It  was 
contended  in  this  case,  that  the  rule,  which  permits  a  letter  to  be 
admitted,  as  evidence  against  a  party,  when  there  is  no  proof  of  the 
hand-writing,  except  the  fact  that,  in  due  course,  it  had  been  received 
in  reply  to  a  letter  which  had  been  addressed  to  the  same  party,  should 
be  applied  to  telegraphic  dispatches.  While  it  was  thought  it  might 
apply  to  a  dispatch  in  answer  to  a  communication  by  letter,  it  was 
held  to  be  inapplicable  to  a  dispatch  received  in  reply  to  a  communica- 


TeIvEgrams  and  Conversations  by  Tei,Ephone  507 

tion  sent  by  telegraph.    And  this  seems  to  be  now  the  recognized  law 
where  both  the  message  sent  and  the  answer  are  by  telegraph. 

In  the  case  of  The  United  States  v.  Babcock,  3  Dillon,  576,  the 
court  refused  to  allow  a  telegraphic  dispatch  to  be  offered  in  evidence 
without  proof  of  the  hand-writing  of  the  defendant,  or  that  it  was 
authorized,  or  sent  by  him  or  by  his  direction.  And  this  we  take  to  be 
the  unquestionable  rule. 

Judgment  affirmed. 


SHAWYER  V.  CHAMBERLAIN. 
1/5  Iowa  742.     (1900) 

The  defendant,  by  written  contract,  purchased  a  stock  of  drugs  and 
certain  fixtures  of  plaintiff  December  30,  1898,  and  refused  to  carry 
out  its  terms,  and  this  is  an  action  for  the  resulting  damages.  Verdict 
and  judgment  for  the  plaintiff,  and  the  defendant  appeals.     Affirmed. 

Ladd,  J.  The  defendant  insists  that  the  testimony  of  plaintiff  to 
a  conversation  with  him  through  the  telephone  ought  to  have  been 
excluded,  for  that  it  is  of  too  uncertain  and  easily  manufactured  a 
character  to  be  competent.  These  defects,  if  they  exist,  would  not 
justify  rejecting  such  evidence,  but  merely  affect  the  weight  it  should 
receive.  This  method  of  communication,  of  recent  origin,  is  one  of 
the  incidents  of  contemporary  history,  of  which  the  courts  take  judi- 
cial notice.  It  greatly  facilitates  business  transactions,  and  there  is 
no  better  reason  for  rejecting  proof  of  a  conversation  over  a  tele- 
phone line  than  of  one  had  without  its  use.  Identity  may  be  estab- 
lished by  means  of  the  hearing  or  other  circumstances  quite  as  readily, 
though  possibly  not  as  certainly,  as  by  sight.  Wolfe  v.  Railway  Co., 
97  Mo.  473  (11  S.  W.  Rep.  49,  ID  Am.  St.  Rep.  331) ;  Oskamp  v. 
Gadsen,  35  Neb.  7  (52  N.  W.  Rep.  718,  17  L.  R.  A.  440)  ;  Sullivan 
V.  Kuydendall,  82  Ky.  483.  See  German  Sav.  Bank  of  Davenport  v. 
Citizens'  Nat.  Bank,  loi  Iowa,  530;  Davis  v.  Walter,  70  Iowa  465. 


5o8  Cases  on  Evidencic 

BANNING  V.  BANNING. 
80  Calf.  271.     (i88p) 

CANCLiifif,  C.  Action  for  partition  of  land.  The  complaint  is  in 
the  most  general  form,  alleging  that  the  parties  own  the  land  as  ten- 
ants in  common,  and  specifying  the  undivided  portion  to  which  each 
party  is  entitled.  The  answer  denies  that  either  of  the  plaintiffs  has 
an  estate  in  the  land,  and  alleges  that  the  defendant  is  the  sole  and 
exclusive  owner,  and  in  the  exclusive  possession  thereof. 

The  appeal  rests  upon  judgment  roll  alone,  including  the  additional 
findings,  and  appellant's  counsel  contend  that  the  findings  do  not 
support  the  judgment,  for  the  reason  that  they  do  not  show  that 
defendant  executed  the  deeds  to  the  plaintiffs  by  which  plaintiffs 
claim  title.  The  special  and  only  ground  of  objection  to  the  sufficiency 
of  the  execution  of  those  deeds  is,  that  at  the  time  the  deeds  were 
acknowledged  the  defendant  was  a  married  woman,  and  was  not 
visibly,  and  therefore  not  personally,  present  before  the  notary  at  the 
time  he  took  her  acknowledgment  through  a  telephone,  she  then  being 
three  miles  distant  from  him,  as  appears  by  the  additional  findings. 

The  answer  to  this  objection  is,  that  in  the  absence  of  fraud,  duress, 
accident,  and  mistake,  the  certificate  of  the  notary  in  due  form  of 
law  is  conclusive  of  the  material  facts  therein  stated.  The  facts 
stated  in  the  additional  findings  were  not  admissible  as  evidence  to 
dispute  the  official  certificate  of  the  notary;  and  if  admitted  should 
have  been  disregarded,  as  they  evidently  were,  by  the  trial  court. 

It  is  admitted  that  the  certificate  of  the  notary  is  in  due  form ; 
and  it  is  not  alleged  or  pretended  by  the  defendant  that  she  did  not 
volunarily  sign  and  deliver  the  deeds ;  nor  that  she  did  not  voluntarily, 
and  without  the  hearing  of  her  husband,  acknowledge  the  execution 
of  them  through  the  telephone,  after  being  informed  by  the  notary 
of  their  contents;  nor  that  any  deception  or  fraud  was  practiced 
to  induce  her  to  execute  the  deeds;  nor  even,  that  the  plaintiffs  had 
notice  of  the  manner  in  which  it  is  alleged  that  she  acknowledged  the 
execution  through  the  telephone. 

These  particulars  are  not  stated  for  the  purpose  of  maintaining 
that,  under  any  circumstances,  an  acknowledgment  of  a  deed  may  be 
taken  through  a  telephone,  but  for  the  sole  purpose  of  showing  that 
there  is  no  pretense  of  fraud,  duress  or  mistake. 

BEI.CHER,  C.  C,  and  Hayne,  C,  concurred. 


.  TEI^EGRAMS  and   CONVEIRSATIONS  BY  TELEPHONE  509 

LORD  ELECTRIC  CO.  v.  MORRILL. 
1^8  Mass.  304.     (1901) 

Contract  on  an  account  annexed  against  the  lessee  for  twenty-five 
years  of  the  Jewelers  Building,  so  called,  on  the  corner  of  Washington 
and  Bromfield  Streets  in  Boston,  to  recover  for  putting  in  additional 
electric  lights  and  wires  not  included  in  a  written  contract  between 
the  plaintiff  and  the  trustees  of  that  building.  Writ  dated  July  19, 
1899. 
'  At  the  trial  in  the  Superior  Court,  before  Sheldon,  J.,  one  Driscoll, 
a  witness  for  the  plaintiff,  testified  that  he  was  the  plaintiff's  book- 
keeper, and  that  he  remembered  having  a  conversation  over  the  tele- 
phone with  the  defendant.  He  was  then  asked  by  the  plaintiff,  what 
the  conversation  was.  The  defendant  objected  to  the  evidence,  where- 
upon the  judge  asked  the  witness  "Do  you  know  it  was  Mr.  Morrill?" 
and  the  witness  answered  "Well,  I  was  quite  familiar  with  his  voice 
and  I  recognized  it  as  such."  The  judge  then  admitted  the  conver- 
sation and  the  defendant  excepted. 

Morton,  J.  This  is  an  action  to  recover  of  the  defendant  his 
share  of  the  expense  of  certain  electrical  work  done  by  the  plaintiff 
in  a  building  called  the  Jewelers  Building  on  the  corner  of  Washing- 
ton and  Bromfield  Streets  in  Boston.  There  was  a  verdict  for  the 
plaintiff,  and  the  case  is  here  on  the  defendant's  exceptions  to  the 
refusal  of  the  court  to  rule  that  on  the  pleadings  and  evidence  the 
plaintiff  was  not  entitled  to  recover,  to  the  admission  of  a  conversation 
over  the  telephone  with  the  defendant,  and  to  the  judge's  charge. 

As  to  the  conversation  over  the  telephone,  the  witness  testified  that 
he  recognized  the  defendant's  voice.  This  was  sufficient  evidence  of 
identity  to  justify  the  court  in  admitting  the  evidence.  The  con- 
versation does  not  seem  to  have  been  material,  but  we  see  no  way  in 
which  the  defendant  could  have  been  harmed  by  it. 


SAVELAND  v.  GREEN. 
40  Wis.  431.     (1876) 


Lyon,   J.     The   telegram   received   by   the  plaintiff   at   Milwaukee 
from  Bohne  was  read  in  evidence,  against  the  objection  of  the  de- 


510  Cases  on  Evidence 

fendant ;  and  the  message  delivered  in  the  office  at  Buffalo  was  not 
produced,  or  its  absence  accounted  for. 

The  learned  counsel  for  the  defendant  insist  that  the  latter  is  the 
original,  and  should  have  been  produced;  and  that  the  message  re- 
ceived by  the  plaintiff  was  but  secondary  evidence,  at  most,  and  could 
not  properly  be  received  until  the  loss  of  the  original  had  been  proved. 

In  a  late  treatise  on  the  subject  (Scott  &  Jamagin  on  the  Law  of 
Telegraphs),  it  is  said  that  "telegraph  messages  are  instruments  of 
evidence  for  various  purposes,  and  are  governed  by  the  same  general 
rules  which  are  applied  to  other  writings."  (Sec.  340.)  Also,  that 
"the  original  message,  whatever  it  may  be,  must  be  produced,  it  being 
the  best  evidence;  and  in  cases  of  its  loss,  or  inability  to  produce  it 
from  other  cause,  the  next  best  evidence  the  nature  of  the  case  will 
admit  of,  must  be  furnished.  If  there  is  a  copy  of  the  message  exist- 
ing, it  should  be  produced;  if  not,  the  contents  of  the  message  should 
be  shown  by  parol  testimony."  (Sec.  341.)  We  believe  the  above 
extracts  contain  a  correct  statement  of  the  law,  and  so  hold. 

It  only  remains  to  determine  which  was  the  original  message,  that 
delivered  to  the  telegraph  company  by  Bohne  at  Buffalo,  or  that 
received  by  the  plaintiff  from  the  telegraph  office  in  Milwaukee. 

Discussing  a  similar  question  in  Durkee  v.  Vt.  C.  R.  R.  Co.,  29  Vt.. 
127,  Redfield,  Ch.  J.,  stated  the  law  as  follows:  "In  regard  to  the 
particular  end  of  the  line  where  inquiry  is  first  to  be  made  lor  the 
original,  it  depends  upon  which  party  is  responsible  for  its  trans- 
mission across  the  line,  or,  in  other  words,  whose  agent  the  telegraph 
is.  The  first  communication  in  a  transaction,  if  it  is  all  negotiated 
across  the  wires,  will  only  be  effective  in  the  form  in  which  it  reaches 
its  destination.  In  such  case,  inquiry  should  first  be  made  for  the 
very  dispatch  delivered.  In  default  of  that,  its  contents  may  be  shown 
by  the  next  best  proof."  (p.  140.)  To  the  same  effect  are  Trevor 
v.  Wood,  36  N.  Y.  307,  and  Dunning  v.  Roberts,  35  Barb.  463.  In 
Howley  v.  Whipple,  48  N.  H.  487,  it  was  sought  to  prove  that  a 
person  was  in  Montreal  on  a  given  day,  by  showing  that  a  telegram, 
purporting  to  have  been  sent  by  him  from  that  place  on  that  day,  was 
received  at  a  town  in  New  Hampshire.  It  was  held  that  the  message 
received  did  not  prove  the  fact  that  the  supposed  sender  thereof  was 
then  in  Montreal.  The  decision  was  doubtless  correct.  But  the  court 
in  that  case  recognized  the  correctness  of  the  rule  laid  down  in  the 
cases  above  cited. 

After  a  careful  consideration  of  the  question,  and  after  full  exam- 
ination of  all  the  adjudications  we  can  find  bearing  upon  it,  we  have 


Telegrams  and  Conversations  by  TeivEphone  511 

reached  the  conclusion  that  the  law  applicable  to  this  case  is  correctly 
stated  by  Judge  Redfield  in  Durke  v.  Vt.  C,  R.  R.  Co.,  supra. 

The  same  principle  is  also  laid  down  in  Scott  &  Jarnagin  on  Tele- 
graphs, as  follows:  "Sec.  345.  In  all  cases  where  the  company  can 
be  considered  as  the  agent  of  the  sender  of  the  message,  in  contro- 
versies arising  out  of  the  communication  by  telegraph  between  the 
sender  and  the  person  to  whom  the  message  is  addressed,  the  message 
received  by  such  person  must  be  regarded  as  the  original.  If  it 
differs  from  the  message  delivered  for  transmission,  by  which  the 
sender  has  suffered  damage,  he  must  look  to  his  agent,  the  telegraph 
company,  for  indemnity.  In  such  controversies  between  the  sender 
and  receiver,  the  message  received  is  the  best  evidence." 

By  the  Court. 

Judgment  affirmed. 


MILES  V.  ANDREWS. 
153  III.  262.     (1894) 


Mr.  Justice  Baker  delivered  the  opinion  of  the  court: 
This  was  an  action  of  assumpsit,  by  appellants,  against  appellees, 
upon  three  promissory  notes.  The  declaration  contained  three  special 
counts,  each  describing  one  of  the  notes  in  suit,  and  also  the  common 
counts.  The  defendants  filed  two  special  pleas :  First,  that  the  notes 
were  given  without  any  good  or  valuable  consideration;  and  second, 
that  the  sole  and  only  consideration  upon  which  they  were  executed 
was  for  money  won  by  plaintiffs  from  defendant  Robert  B.  Andrews 
in  a  certain  speculation  on  the  market  price  of  grain,  and  defendant 
Wells  Andrews  signed  the  notes  as  surety.  On  the  trial  the  jury  found 
for  the  defendants,  and  judgment  was  rendered  on  the  verdict.  Ap- 
pellants appealed  to  the  Appellate  Court,  where  that  judgment  was 
affirmed.  A  reversal  is  urged  here  upon  the  ground  that  the  trial 
court  admitted  improper  evidence,  and  gave  improper  instructions  to 
the  jury  on  behalf  of  the  defendants. 

Wells  Andrews  also  testified :  "Prior  to  signing  these  notes  my  son 
had  asked  me  to  sign  them.  My  son  and  I  then  went  to  the  telephone 
office  together,  and  then  Robert  went  to  the  telephone  and  called  for 
P.  B.  and  C.  C.  Miles,  arid  they  rang,  and  he  says,  'Philo,  is  that  you?' 
Did  not  hear  the  answer.     Then  Robert  said,  'I  have  been  down  to 


512  CasivS  on  Evidkxck 

see  uncle  Johnny  to  go,  on  the  notes,  and  he  said  he  had  got  sick  and 
tired  of  gambling  in  these  options,  and  would  not  go  on  the  note,  but 
father  would,'  and  then  turned  around  and  said,  'Philo  says  it  is  all 
right.' "  The  witness  did  not  hear  the  answers,  and  did  not  of  his 
own  knowledge  know  that  Robert  was  at  the  time  talking  to  Philo, 
if  to  any  one.  Counsel  for  appellants  insist  that  this  testimony  was 
incompetent.  Robert  Andrews  testified  that  he  talked  to  Philo  B. 
Miles  at  the  time  spoken  of  by  his  father.  The  conversation  being 
thus  shown  to  have  been  between  two  of  the  parties  to  the  suit,  and 
upon  the  subject-matter  of  the  litigation,  was,  we  think,  competent, 
though  perhaps  entitled  to  little  weight. 

Judgment  affirmed. 


SULLIVAN,  &c.,  V.  KUYKENDALL. 
82  Ky.  483.     (1885) 

Judge  Holt  delivered  the  opinion  of  the  court. 

By  the  terms  of  a  verbal  contract  for  the  sale  of  personal  property, 
the  appellants,  Sullivan  &  Co.,  were  to  estimate  and  receive  it  within 
ten  days  after  notice  from  the  appellee,  Kuykendall,  that  it  was  ready. 

In  view  of  another  trial  of  the  case  it  is  proper  that  we  should 
pass  upon  what  seems  to  us  to  be  a  new  question  as  to  the  competency 
of  certain  testimony;  at  least  we  have  been  unable  to  find  any  direct 
authority  upon  it. 

The  appellee,  upon  going  to  the  place,  on  February  9,  1880,  where 
the  property  was  to  be  received,  did  not  find  the  appellants,  or  any  one 
representing  them. 

He  thereupon  went  to  a  telephone  office  at  Morgantown,  Kentucky, 
for  the  purpose  of  communicating  with  the  appellants  at  Bowling 
Green,  Kentucky;  and  not  being  accustomed  to  the  use  of  the  instru- 
ment he  got  the  operator  to  talk  for  him. 

Pie  first  directed  him  to  call  for  the  appellant,  Sullivan,  and  he 
did  so,  the  Bowling  Green  operator  reporting  back  that  he  would 
send  for  him  to  come  to  the  office.  Presently  the  Morgantown  oper- 
ator told  the  appellee  that  Sullivan  was  at  Bowling  Green  office  and 
desired  to  know  what  was  wanted,  and  thereupon  a  conversation  took 
place,  Sullivan  using  the  instrument  himself  while  the  Morgantown 


Telegrams  and  Conversations  by  TeeEphonb  513 

operator  talked  for  the  appellee,  and  told  him  what  Sullivan  said  as 
it  came  over  the  wire. 

The  latter  testifies  that  on  that  day  he  had  a  conversation  over 
the  telephone  with  some  one  at  Morgantown,  and  upon  the  same 
subject  to  which  the  appellee  says  the  conversation  related;  but  they 
differ  widely  as  to  what  was  said.  The  Morgantown  operator,  being 
mtroduced  as  a  witness,  testifies  that  upon  the  day  named  he  had  a 
conversation  upon  that  subject  with  some  one  at  Bowling  Green, 
whom  the  operator  there  told  him  was  Sullivan;  but  that  he  does  not 
recollect  what  was  said.  Under  this  state  of  case  the  court  below 
permitted  the  appellee  to  prove,  by  himself  and  two  other  persons 
who  were  present  at  the  time,  what  the  Morgantown  operator  re- 
ported to  appellee,  while  the  conversation  was  going  on  over  the  wire, 
as  being  said  by  Sullivan. 

It  is  certain  that  the  latter  did  talk  over  the  wire,  because  he  says 
so.  The  appellee  did  not  pay  the  telephone  charge,  and  it  does  not 
appear  who  did,  save  the  Bowling  Green  operator  reported  to  the 
Morgantown  one  that  Sullivan  would  do  so;  and  the  latter  is  silent 
upon  this  point. 

It  would,  beyond  question,  have  been  competent  to  prove,  by  the 
Morgantown  operator,  what  Sullivan  said  to  him;  but  whether  his 
report  to  the  appellee  of  what  Sullivan  was  saying,  made  as  the 
conversation  progressed,  is  competent  or  falls  within  the  domain  of 
incompetent  hearsay  testimony,  is  a  question  of  importance  in  view 
of  the  astonishing  growth  of  the  business  to  which  it  relates,  and 
one  not  free  from  difficulty. 

In  the  case  of  a  telegram,  the  original  must  usually  be  produced 
in  evidence,  or  its  loss  shown,  before  its  contents  can  be  proven  or 
the  copy  delivered  by  the  operator  to  the  party  receiving  the  message 
used,  unless  it  be  where  the  copy  becomes  primary  testimony  by  the 
telegraph  company  being  the  agent  of  the  sender. 

In  the  use  of  the  telephone,  however,  the  parties  talk  with  each 
other  as  if  face  to  face;  and,  save  where  a  mere  message  is  sent, 
there  is  no  written  evidence  of  what  has  passed.  By  inventive  means 
they  are  brought  together  for  the  transaction  of  business. 

It  is  a  well  settled  rule  that  where  one,  through  an  interpreter, 
makes  statements  to  another,  the  interpreter's  statement  made  at  the 
time  of  what  was  so  said,  is  competent  evidence  against  the  party. 

The  interpreter  need  not  be  called  to  prove  it,  but  the  interpreter's 
statement,  made  at  the  time,  may  be  proven  by  third  persons  who 
werej)resent  and  heard  it.     (Camerlin  v.  Palmer  Co.,  10  Allen  539; 


514  Cases  on  Evidence 


Schearer  v.  Harber,  36  Ind.  536;  i  Greenleaf's  Ev.,  section  183;  i 
Phillips'  Ev,  519,  side-page.) 

The  reason  of  this  rule  is  that  the  interpreter  is  the  agent  of  both 
parties,  and  acting  at  the  time  within  the  scope  of  his  authority,  and 
we  have  been  unable  to  draw  any  satisfactory  distinction  between  this 
case  and  the  one  under  consideration. 

Subject  to  various  qualifications,  the  old  rule,  that  a  party  must 
produce  the  best  evidence  within  his  power  to  prove  a  fact,  should 
govern.  But  as  business  expands  by  the  aid  of  new  inventions,  wider 
scope  must  be  given  to  the  rules  of  evidence.  There  is  no  need, 
however,  of  any  departure  or  innovation  in  this  case,  because  it  is  a 
well  settled  rule  of  evidence  that  the  statements  of  an  agent,  when 
acting  within  the  scope  of  his  agency,  are  competent  against  his 
principal. 

When  one  is  using  the  telephone,  if  he  knows  that  he  is  talking  to 
the  operator,  he  also  knows  that  he  is  making  him  his  agent  to  repeat 
what  he  is  saying  to  another  party;  and,  in  such  a  case,  certainly  the 
statements  of  the  operator  are  competent,  being  the  declarations  of 
the  agent,  made  during  the  progress  of  the  transaction. 

If  he  is  ignorant  whether  he  is  talking  to  the  person  with  whom 
he  wishes  to  communicate  or  with  the  operator,  or  even  any  third 
party,  yet  he  does  it  with  the  expectation  and  intention  on  his  part 
that  in  case  he  is  not  talking  with  the  one  for  whom  the  information 
is  intended,  that  it  will  be  communicated  to  that  person;  and  he 
thereby  makes  the  person  receiving  it  his  agent  to  communicate  what 
he  may  have  said.  This  should  certainly  be  the  rule  as  to  an  operator, 
because  the  person  using  a  telephone  knows  that  there  is  one  at  each 
station  whose  business  it  is  to  so  act;  and  we  think  that  the  neces- 
sities of  a  growing  business  require  this  rule,  and  that  it  is  sanctioned 
by  the  known  rules  of  evidence. 

Judgment  reversed. 


Joint  Crime;  and  One  Acquitted  515 

JOINT  CRIME  AND  ONE  ACQIHTTED. 

STATE  V.  RINEHART. 

106  N.  C.  787.    (1890) 

it 

Indictment  for  fornication  and  adultery.  Verdict  of  giiilty.  Judg- 
ment and  appeal. 

Davis,  J.  After  stating  the  facts :  When  two  persons  are  tried 
jointly  for  the  commission  of  an  offense  that  requires  the  joint  act 
of  the  two  to  commit,  and  one  of  them  is  acquitted,  there  cannot  be 
a  verdict  of  guilty  as  to  the  other. 

The  defendants  are  charged  with  fornication  and  adultery,  and, 
as  the  offense  charged  is  a  joint  one,  if  one  of  the  parties  in  the 
joint  trial  be  acquitted,  or  if  one  of  them  has  been  previously  acquitted 
on  a  separate  trial,  it  operates  as  an  acquittal  of  the  other,  and  there 
can  be  no  judgment  as  to  either.  State  v.  Mainor,  6  Ired.  340 ;  State 
V.  Parham,  5  Jones,  416. 

This  has  been  the  ruling  in  North  Carolina,  though  the  doctrine 
held  by  us  has  been  fully  reviewed  in  Texas  where  it  is  repudiated, 
and  it  is  held  that  the  acquittal  of  one  does  not  per  se  operate  as  an. 
acquittal  of  the  other.  Alonzo  v.  State,  15  Tex.  Appl.  378.  The 
same  has  been  held  by  the  Supreme  Court  of  Tenn.  State  v.  Cald- 
well, 8  Baxter  576. 

It  may  well  be  doubted  whether,  when  one  of  the  parties  has  con- 
fessed and  admitted  guilt,  or  there  is  competent  evidence  to  convict 
as  to  one  and  not  the  other,  it  would  not  be  more  in  accord  with 
reason  to  permit  the  jury  to  render  a  verdict  of  guilty  as  to  the  one 
admitted  or  proved  to  be  guilty  and  return  a  verdict  of  not  guilty, 
because  not  proved  as  to  the  other,  than  to  require  them  to  say  not 
guilty  as  to  both,  contrary  to  the  admitted  or  clearly  proven  facts. 
Under  such  a  rule  no  innocent  person  would  ever  be  punished,  and  no 
injustice  could  be  done,  unless  it  be  an  injustice  to  convict  and  pun- 
ish the  guilty.  While  it  is  well  settled  that  the  admissions  or  con- 
fessions of  one  defendant  are  competent  as  evidence  against  the 
party  making  the  admissions,  or  confessions,  it  is  equally  well  set- 
tled, both  by  judicial  decisions  and  by  statute  (The  Code,  sec.  1041), 
that  such  admissions,  or  confessions,  "shall  not  be  received  in  evidence 
against  the  other." 

Affirmed. 


5i6  ^      Casks  on  Evidence 

STATE  V.  CALDWELL. 
6/  Tenn.  ^76.     (18/6) 

Freeman,  J.  Defendant  with  a  woman  named  Green,  were  jointly 
indicted  for  open  and  notorious  lewdness.  The  parties  severed  for 
trial,  and  the  woman  was  acquitted.  A  plea  was  filed  in  bar  to  the 
further  prosecution  on  the  part  of  defendant  on  the  ground  that  the 
acquittal  of  the  woman  operated  as  equivalent  to  an  acquittal  of  the 
man,  as  the  offense  could  only  be  committed  by  two  persons.  The 
plea  was  demurred  to,  but  the  demurrer  overruled.  The  attorney- 
general  declining  to  take  issue  on  the  plea,  the  defendant  was  dis- 
charged and  the  State  appealed. 

We  think  the  court  erred  in  refusing  to  sustain  the  demurrer.  The 
State  might  fail  to  be  able  to  make  proof  of  the  offense  in  the  trial 
of  one  party  from  many  causes,  yet  might  be  able  to  make  proof 
on  the  trial  of  the  other.  We  so  held  at  Nashville  some  time  since, 
and  approve  the  holding.  The  acquittal  of  one  could  not  show  the 
other  was  not  guilty. 

Reverse  the  judgment  and  remand  the  case  to  be  further  proceeded 
with. 


ALONZO  V.  STATE. 
15  Tex.  All.  S7S.     (1884) 


WiLLSON,  J.  J.  Defendant  and  one  Lydia  Huberick  were  jointly 
charged  by  information  with  living  together  in  adultery,  defendant 
being  unmarried,  and  said  Lydia  being  a  married  woman.  Lydia 
fluberick  severed  from  her  co-defendant  upon  the  trial  and  was  tried 
first,  the  trial  resulting  in  her  acquittal.  When  the  defendant's  case 
was  subsequently  called  for  trial  he  filed  a  special  plea  of  former 
acquittal,  in  substance  setting  forth  that  the  information  charged 
a  joint  offense  against  Lydia  and  himself;  that  they  were  charged 
with  adultery  with  each  other;  that  a  severance  was  granted;  that 
Lydia  had  been  tried  and  acquitted  for  said  offense;  and  that  her 
acquittal  in  law  operated  as  an  acquittal  also  of  himself  of  the  said 


Joint  Crime  and  One  Acquitted  517 

charge.  On  motion  of  the  county  attorney,  this  plea  was  stricken  out, 
and  this  action  of  the  court  is  assigned  as  error. 

In  North  CaroHna  it  has  been  held  that  "after  the  acquittal  of 
one  of  the  defendants  (in  a  joint  charge  of  adultery),  there  could 
be  no  judgment  against  the  other.  The  crime  charged  on  these  per- 
sons could  not  be  committed  but  by  both  of  them;  and  upon  a  verdict 
that  one  of  them  was  not  guilty,  it  appears  conclusively  that  the 
other  could  not  be.  It  is  exactly  like  the  case  of  riots,  conspiracies 
and  principal  and  accessory  which  we  find  in  the  books.  The  farthest 
the  courts  have  gone  is  to  allow  one  of  the  parties  to  be  tried  by 
himself  and  convicted  and  then  judgment  is  given  against  that  party, 
because  as  to  him  the  guilt  of  the  other  party  is  found,  as  well  as 
his  own.  But  when  the  one  has  been  previously  tried  and  acquitted 
or  when  both  are  tried  together  and  the  verdict  is  for  one,  the  other 
cannot  be  found  guilty,  for  he  cannot  be  guilty,  since  a  joint  act  is 
indispensable  to  the  crime  in  either,  and  the  record  affirms  that  there 
was  no  such  joint  act."  (State  v.  Mainor  and  Wilkes,  6  Iredell, 
N.  C.  340;  State  v.  Parham,  5  Jones.  N.  C.  416.) 

We  cannot  give  our  assent  to  the  doctrine  of  the  above  cited  cases, 
nor  to  the  reasoning  of  these  decisions  upon  which  the  same  are 
founded.  We  think  the  reasoning  is  based  upon  false  premises  and 
is  fallacious.  While  it  is  true  that,  to  constitute  adultery,  there 
must  be  a  joint  physical  act,  it  is  certainly  not  true  that  there  must 
be  a  joint  criminal  intent.  The  bodies  must  concur  in  the  act,  but 
the  minds  may  not.  While  the  criminal  intent  may  exist  in  the  mind 
of  one  of  the  parties  to  the  physical  act,  there  may  be  no  such  in- 
tent in  the  mind  of  the  other  party.  One  may  be  guilty  the  other 
innocent,  and  yet  the  joint  physical  act  necessary  to  constitute  adultery 
may  be  complete.  Thus,  if  one  of  the  parties  was,  at  the  time  of 
committing  the  physical  act,  insane,  certainly  such  party  has  com- 
mitted no  crime;  but  it  certainly  cannot  be  contended  that  the  other 
party,  who  was  sane,  has  committed  no  crime.  So,  if  one  of  the 
parties  was  mistaken  as  to  a  matter  of  fact,  after  exercising  due 
care  to  ascertain  the  truth  in  relation  to  such  fact,  which  fact,  had  it 
been  true,  would  have  rendered  the  alleged  criminal  act  legal  and 
innocent,  the  party  so  acting  under  such  mistake  of  fact  would  be 
innocent  of  crime.  (Penal  Code,  Art.  15;  Watson  v.  The  State,  13 
Texas  Ct.  App.  76.)  But,  suppose  the  other  party  was  not  mistaken 
as  to  such  fact,  but,  on  the  contrary,  well  knew  the  true  fact  which 
rendered  the  connection  illicit,  would  this  party  be  regarded  as  guilty 
of  no  offense  because  the  mistaken  party  was  innocent? 


5i8  Cases  on  Evidence 

If  the  North  CaroHna  rule  is  correct,  it  must  apply  also  to  forni- 
cation, bigamy  and  incest.  Now,  suppose  a  father  and  his  daughter 
are  indicted  for  incestuous  intercourse  with  each  other.  Upon  the 
trial  of  the  daughter  it  is  conclusively  proved  that  at  the  time  of 
committing  the  physical  act  she  Avas  an  idiot,  or  that  she  was  wholly 
ignorant  of  the  relationship  existing  between  herself  and  her  father, 
without  any  fault  of  hers ;  of  course  in  either  of  these  cases  she  must 
be  acquitted.  Would  it  not  be  monstrous  to  hold  that  because  of 
her  innocence — her  acquittal — the  beastly  father  must  go  unpunished 
for  his  unnatural  crime?  Such  cannot  be  the  law,  and  such,  we 
believe,  is  not  the  law  as  declared  by  the  weight  of  authority. 

In  Missouri,  it  has  been  held,  in  a  case  of  incest  where  one  party 
had  knowledge  of  the  relationship  and  the  other  was  ignorant  of  it, 
that  the  former  may  be  convicted  and  the  latter  acquitted.  (State  v. 
Elliss,  74  Mo.  385.) 

We  therefore  hold  that  the  court  did  not  err  in  sustaining  the 
motion  of  the  county  attorney  to  strike  out  the  special  plea  of  former 
acquittal  filed  by  the  defendant.  The  acquittal  of  his  co-defendant 
could  in  no  manner  affect  the  question  of  his  guilt  or  innocence,  and 
the  case  myst  be  considered  without  reference  to  such  former  ac- 
quittal of  his  co-defendant. 

Reversed  and  remanded  on  another  ground. 

Note.  Jurors  are  bound  by  oath  to  render  a  verdict  according  to  the 
evidence.  Hence,  in  the  case  of  a  joint  crime  requiring  two  persons  to 
commit,  If  the  evidence  is  sufficient  to  convict  one  and  Insufficient  to  con- 
vict the  other  a  verdict  of  guilty  as  to  the  former  and  not  guilty  as  to  the 
latter  is  perfectly  consistent. 


PART  IV. 
REAL  EVIDENCE.' 

CONTINENTAL  CASUALTY  CO.  v.  WYNNE. 
36  Okla.  323.     (191 2) 

Action  by  Frank  E.  Wynne  against  the  Continental  Casualty  Com- 
pany.   Judgment  for  plaintiff,  and  defendant  brings  error.     Affirmed. 

Brewer,  C.  This  is  a  suit  on  an  accident  insurance  policy,  and 
was  brought  by  Frank  E.  Wynne,  as  plaintiff,  against  the  Continental 
Casualty  Company,  a  corporation,  as  defendant,  in  the  District  Court 
of  Cleveland  county,  September  19,  1908.  We  shall  refer  to  the 
parties  as  they  were  known  in  the  trial  court. 

The  next  objection  (t.  e.,  that  it  was  error  to  permit  plaintiff  to 
show  the  jury  the  parts  of  his  person — that  is,  his  shoulder  and 
collar  bone — alleged  to  have  been  injured  and  broken)  is  likewise  with- 
out merit.  We  think  ordinarily  where  the  question  of  an  injury,  or 
its  extent  or  permanency,  is  in  issue  that  this  would  be  proper.  City 
of  Kingfisher  v.  Sparel  Altizer,  13  Okla.  121,  74  Pac.  107;  Wigmore 
on  Ev.  vol.  3,  sec.  222,  and  note;  Jones  on  Ev.  (2nd  ed.)  396-398. 
For  a  discussion  of  the  principle  involved,  see  C.  R.  L  &  P.  Ry.  Co. 
v.  Hill,  Post,  129  Pac.  13.  But  it  was  peculiarly  proper  in  this  case 
because  of  a  provision  of  the  policy  sued  on.  In  part  3  numerous 
things  are  mentioned,  the  happening  of  any  one  of  which,  it  is  stipu- 
lated, shall  reduce  the  amount  payable  to  one-tenth  of  the  amount 
which  would  otherwise  be  payable  under  the  policy.  One  of  these 
things  causing  such  reduction  is:  "Where  the  accidental  injury 
makes  no  visible  contusion  or  wound  on  the  exterior  of  the  body  of 
insured."  Therefore,  regardless  of  whether  this  testimony  would 
have  been  otherwise  competent,  it  certainly  was  both  competent  and 
material  in  this  case  to  show  that  the  injury  had  left  its  visible  mark 
on  the  body  of  the  insured;  and  we  can  think  of  no  proof  so  satis- 
factory in  showing  the  same  as  the  exposure  of  the  part  alleged  to  have 
been  seriously  wounded  and  injured. 

Affirmed. 


1  Hughes  on  Evidence,  p.  165. 


520  Cases  on  Evidence 

GRAND  LODGE  B.  of  R.  T.  v.  RANDOLPH. 
186  III.  8p.    (1900) 

Carter,  J.  The  appellee  brought  suit  in  assumpsit  in  the  Circuit 
Court  of  St.  Clair  County  against  the  appellant,  a  fraternal  beneficial 
society  of  this  State,  on  a  certificate  of  membership,  to  recover  the 
amount  stipulated  in  the  constitution  of  the  society  for  a  total  perma- 
nent disability. 

There  was  much  controversy  on  the  trial  over  the  question  whether 
or  not  appellee  was  totally  and  permanently  disabled,  but  that  ques- 
tion of  fact  has  been  conclusively  settled  in  his  favor. 

It  is  contended,  however,  that  the  trial  court  erred  in  its  rulings 
upon  the  admission  and  exclusion  of  evidence,  and  we  have  carefully 
examined  the  evidence  and  the  questions  thus  raised  but  do  not  find 
that  any  error  was  committed.  For  example,  it  is  contended  that 
the  court  erred  in  refusing  to  allow  the  witness  Holmes  to  exhibit  his 
injured  ankle  to  the  jury.  The  purport  of  the  testimony  of  the  wit- 
ness was  that  his  ankle  had  been  crushed  and  injured  as  seriously 
as  the  plaintiff's  leg  had  been,  and  that  it  had  so  far  healed  that  he 
was  still  able  to  perform  his  duties  in  the  train  service  of  the  rail- 
road company.  Certain  medical  witnesses  for  the  plaintiff  had  tes- 
tified, in  effect,  that  a  fractured  leg  never  gets  well,  and  that  a 
person  who  had  suffered  such  a  fracture  would  be  disabled  from  per- 
forming train  service  upon  railroads.  The'  defendant  sought  to  dis- 
pute such  testimony  by  the  personal  experience  of  Holmes  and  by 
the  exhibition  of  his  leg  to  the  jury.  The  court  permitted  a  liberal 
examination  of  this  witness,  and  allowed  the  defendant  to  elicit  from 
him  all  proper  testimony  tending  not  only  to  contradict  the  testimony 
given  on  behalf  of  the  plaintiff,  but  tending  to  prove  that  notwith- 
standing plaintiff's  injury  he  was  not  totally  and  permanently  disabled 
from  engaging  in  railroad  train  service,  as  alleged.  But  it  is  obvious 
that  the  point  in  issue  was  the  extent  of  the  plaintiff's  and  not  of  the 
witness'  injuries,  and  that  to  have  permitted  the  close  scrutiny  re- 
quested, into  the  nature  and  extent  of  the  injury  to  the  witness'  ankle, 
would  have  raised  a  collateral  issue  and  diverted  the  minds  of  the 
jury  from  the  issues  submitted  to  them. 

Judgment  affirmed. 


Real  Evidence  521 

UNION  PACIFIC  RAILWAY  COMPANY  v.  BOTSFORD. 
141  U.  S.  250.    (1890) 

The  original  action  was  by  Clara  L.  Botsford  against  the  Union 
Pacific  Railway  Company,  for  negligence  in  the  construction  and 
care  of  an  upper  berth  in  a  sleeping  car  in  which  she  was  a  passenger, 
by  reason  of  which  the  berth  fell  upon  her  head,  bruising  and  wound- 
ing her,  rupturing  the  membranes  of  the  brain  and  spinal  cord,  and 
causing  a  concussion  of  the  same,  resulting  in  great  suffering  and 
pain  to  her  in  body  and  mind,  and  in  permanent  and  increasing  in- 
juries.    Answer,  a  general  denial. 

Three  days  before  the  trial  (as  appeared  by  the  defendant's  bill  of 
exceptions)  "the  defendant  moved  the  court  for  an  order  against  the 
plaintiff,  requiring  her  to  submit  to  a  surgical  examination,  in  the 
presence  of  her  own  surgeon  and  attorneys,  if  she  desired  their  pres- 
ence; it  being  proposed  by  the  defendant  that  such  examination 
should  be  made  in  manner  not  to  expose  the  person  of  the  plaintiff  in 
any  indelicate  manner;  the  defendant  at  the  time  informing  the  court 
that  such  examination  Was  necessary  to  enable  a  correct  diagnosis  of 
the  case,  and  that  without  such  examination  the  defendant  would 
be  without  any  witnesses  as  to  her  condition.  The  court  overruled 
said  motion,  and  refused  to  make  said  order,  and  upon  the  sole  ground 
that  this  court  had  no  legal  right  or  power  to  make  and  enforce  such 
order." 

To  this  ruling  and  action  of  the  court  the  defendant  duly  excepted, 
and  after  a  trial  at  which  the  plaintiff  and  other  witnesses  testified 
in  her  behalf  and  which  resulted  in  a  verdict  and  judgment  for  her 
in  the  sum  of  $10,000,  sued  out  this  writ  of  error, 

Mr.  Justice  Gray.  The  single  question  presented  by  this  record 
is  whether,  in  a  civil  action  for  an  injury  to  the  person,  the  court, 
on  application  of  the  defendant,  and  in  advance  of  the  trial,  may 
order  the  plaintiff,  without  his  or  her  consent,  to  submit  to  a  surgical 
examination  as  to  the  extent  of  the  injury  sued  for.  We  concur  with 
the  Circuit  Court  in  holding  that  it  had  no  legal  right  or  power  to 
make  or  enforce  such  an  order. 

No  right  is  more  sacred,  or  is  more  carefully  guarded,  by  the  com- 
mon law  than  the  right  of  every  individual  to  the  possession  and  con- 
trol of  his  own  person,  free  from  all  restraint  or  interference  or 
otherwise,  unless  by  clear  and  unquestionable  authority  of  law.  As 
well  said  by  Judge  Cooley,  "The  right  to  one's  person  may  be  said 


522  Case;s  on  Evidence 

to  be  a  right  of  complete  immunity ;  to  be  let  alone."     Cooley  on  Torts 

29- 

The  inviolability  of  the  person  is  as  much  invaded  by  the  compul- 
sory stripping  and  exposure  as  by  a  blow.  To  compel  any  one,  and 
especially  a  woman,  to  lay  bare  the  body,  or  to  submit  it  to  the  touch, 
of  a  stranger,  without  lawful  authority,  is  an  indignity,  an  assault 
and  a  trespass ;  and  no  order  or  process,  commanding  such  an  expos- 
ure or  submission,  was  ever  known  to  the  common  law  in  the  admin- 
istration of  justice  between  individuals,  except  in  a  very  small  num- 
ber of  cases,  based  upon  special  reasons,  and  upon  ancient  practice, 
coming  down  from  ruder  ages,  now  mostly  obsolete  in  England,  and 
never,  so  far  as  we  are  aware,  introduced  into  this  country. 

In  former  times,  the  English  courts  of  common  law  might  if  they 
saw  fit,  try  by  inspection  or  examination,  without  the  aid  of  a  jury, 
the  question  of  the  infancy,  or  the  identity  of  a  party;  or,  on  an 
appeal  of  maihem,  the  issue  of  maihem  or  no  maihem ;  and  in  an 
action  of  trespass  for  maihem,  or  for  an  atrocious  battery,  might, 
after  a  verdict  for  the  plaintiff,  and  on  his  motion,  and  upon  their 
own  inspection  of  the  wound,  super  visum  I'ulneris,  increase  the 
damages  at  their  discretion.  In  each  of  those  exceptional  cases,  as 
Blackstone  tells  us,  "it  is  not  thought  necessary  to  summon  a  jury 
to  decide  it,"  because  "the  fact,  from  its  nature,  must  be  evident  to 
the  court,  either  from  ocular  demonstration  or  other  irrefragible 
proof,"  and,  therefore,  "the  law  departs  from  its  usual  resort,  the 
verdict  of  twelve  men,  and  relies  on  the  judgment  of  the  court  alone." 
The  inspection  was  not  had  for  the  purpose  of  submitting  the  result 
to  the  jury,  but  the  question  was  thought  too  easy  of  decision  to  need 
submission  to  a  jury  at  all.     3  Blackstone's  Com.  331-333. 

The  only  purpose,  we  beheve,  for  which  the  like  writ  was  allowed 
by  the  common  law,  in  a  matter  of  civil  right,  was  to  protect  the 
rightful  succession  to  the  property  of  a  deceased  person  against  fraud- 
ulent claims  of  bastards  when  a  widow  was  suspected  to  feign  her- 
self with  child  in  order  to  produce  a  supposititious  heir  to  the  estate, 
in  which  case  the  heir  or  devisee  might  have  this  writ  to  examine 
whether  she  was  with  child  or  not,  and,  if  she  was,  to  keep  her  under 
proper  restraint  till  delivered,  i  Bl.  Com.  456;  Bac.  Ab.  Bastard,  A. 
In  cases  of  that  class,  the  writ  has  been  issued  in  England  in  quite 
recent  times.  In  re  Blakemore,  14  Law  Journal  (N,  S.)  Ch.  336. 
fiut  the  learning  and  research  of  the  counsel  for  the  plaintiff  in  error 
have  failed  to  produce  an  instance  of  its  ever  having  been  considered. 


RSAi,  Evidence  523 

in  any  part  of  the  United  States,  as  suited  to  the  habits  and  condition 
of  the  people. 

So  far  as  the  books  within  our  reach  show,  no  order  to  inspect 
the  body  of  a  party  in  a  personal  action  appears  to  have  been  made, 
or  even  moved  for,  in  any  of  the  English  courts  of  common  law,  at 
any  period  of  their  history. 

Within  the  last  fifteen  years,  indeed,  as  appears  by  the  cases  cited 
in  the  brief  of  the  plaintiff  in  error,  a  practice  to  grant  such  orders 
has  prevailed  in  the  courts  of  several  of  the  Western  and  Southern 
States,  following  the  lead  of  the  Supreme  Court  of  Iowa  in  a  case  de- 
cided in  1877.  The  consideration  due  to  the  decisions  of  those  courts 
has  induced  us  fully  to  examine,  as  we  have  done  above,  the  precedents 
and  analogies  on  which  they  rely.  Upon  mature  advisement,  we 
retain  our  original  opinion  that  such  an  order  has  no  warrant  of  law. 

Judgment  affirmed. 


McQUIGAN  V.  D.  L.  &  W.  R.  R.  CO. 

i2p  N.  Y.  50.     (i8pi) 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  made  April  28,  1891,  which  af- 
firmed an  order  of  the  Special  Term  denying  a  motion  by  defendant 
for  an  order  directing  the  plaintiff  in  an  action  for  personal  injuries, 
to  submit  to  a  physical  examination  by  surgeons  to  be  appointed  by 
the  court,  and  for  the  appointment  of  a  receiver,  under  whose  direc- 
tion such  examination  should  take  place. 

Andrews,  J.  The  sole  question  presented  by  this  record  is  whether 
the  Supreme  Court  has  power  in  advance  of  the  trial  of  an  action  for 
a  personal  and  physical  injury  to  compel  the  plaintiff  on  an  applica- 
tion made  in  behalf  of  the  defendant  to  submit  to  a  surgical  ex- 
amination of  his  person  by  surgeons  appointed  by  the  court  with  a 
view  of  enabling  them  to  testify  on  the  trial  as  to  the  existence  and 
extent  of  the  alleged  injury.  The  question  is  not  new  in  the  courts, 
although  so  far  as  we  know  it  was  first  presented  in  1868  before  a 
judge  of  the  New  York  Superior  Court  at  Special  Term  in  the  case 
of  Walsh  V.  Say  re  (52  How.  Pr,  334),  who  affirmed  the  existence 
of  the  power.  The  contrary  was  held  by  the  General  Term  of  the 
third  department  in  Roberts  v.  Ogdensburgh  &  Lake  Champlain  Rail- 


524  Cases  on  Evidence 

road  Co.  (29  Hun,  154).  In  1877  the  Supreme  Court  of  Iowa  in  the 
case  of  Schroeder  v,  C.  R.  I.  &  P.  R.  Co.  (47  Iowa  375),  sustained 
the  doctrine  that  the  court  had  an  inherent  right  to  grant  a  compulsory 
order  that  the  plaintiff  submit  to  such  examination,  and  this  decision 
has  been  followed  by  the  courts  of  several  of  the  western  and  south- 
ern states,  and  in  others  the  power  has  been  denied.  The  same  ques- 
tion was  considered  in  the  United  States  Supreme  Court  in  the  recent 
case  of  Union  Pacific  Railroad  Co.  v.  Botsford  (141  U.  S.  250),  and  the 
court  (two  judges  dissenting)  decided  adversely  to  the  claim  that  the 
court  had  power  to  compel  such  examination.  The  opinions  of  the  sev- 
eral courts  which  have  passed  upon  the  question  present  very  fully  the 
considerations  bearing  upon  it.  We  concur  in  the  view  taken  by 
the  Supreme  Court  of  this  state,  and  the  Supreme  Court  of  the  United 
States,  and  we  can  add  very  little  to  the  full  discussion  to  be  found 
in  the  opinions  of  those  courts. 


The  order  should  be  affirmed. 
All  concur. 


Order  affirmed. 


HAYNES  v.  TRENTON. 
12^  Mo.  326.    (i8p4) 


Barclay,  J.  This  is  an  action  to  recover  compensation  for  per- 
sonal injuries  sustained  by  plaintiff.  It  is  based  on  defendant's 
alleged  negligence  in  omitting  reasonable  care  to  keep  a  sidewalk  in 
proper  condition  for  public  use. 

MacFarland,  J.  It  appears  from  the  record,  that  during  the  trial, 
plaintiff  was  permitted  to  exhibit  to  the  jury  his  injured  leg.  This 
was  done  while  plaintiff  was  under  examination  as  a  witness  in  his 
own  behalf.  The  evidence  tended  to  prove  that  plaintiff  had  previ- 
ously sustained  an  injury  to  the  same  leg  at  or  near  the  same  place. 
In  a  former  trial,  experts  had  been  permitted  to  examine  the  leg  and 
testify  as  to  its  condition  and  the  probable  permanency  of  the  injuries. 

After  plaintiff  had  shown  his  leg  to  the  jury  on  this  trial,  and 
evidence  had  been  offered  tending  to  prove  that  the  injuries  were 
greater  than  they  appeared  on  the  former  trial  to  have  been,  de- 
fendant, as  a  part  of  the  cross-examination  of  plaintiff,  asked  that 
physicians,  who  had  previously  examined  the  leg,  might  be  permitted 


Real  Evidence  525 

to  make  a  further  examination  and  give  their  opinion  as  to  its  con- 
dition as  compared  with  that  w^hen  previously  examined.  This  re- 
quest the  court  refused,  and  in  doing  so  we  think  it  committed  re- 
versible error. 

The  leg,  when  shown  to  the  jury,  became  evidence  in  the  case 
which  may  have  carried  with  it  great  weight,  particularly  in  the 
matter  of  the  damage  sustained.  This  evidence  thus  put  into  the 
case  was  open  to  attack  by  the  opposite  party  in  any  manner  which 
may  have  tended  to  reduce  its  probative  force.  When,  for  example, 
a  piece  of  machinery  or  material,  the  character  or  quality  of  which 
is  in  issue,  is  exhibited  to  the  jury,  it  is  always  competent  for  the 
opposite  party  to  have  experts  examine  it  and  give  the  jury  their 
opinion  of  the  quality  of  the  material  and  the  sufficiency  of  the  machin- 
ery. When  admitted  in  evidence,  and  its  damaging  effect  has  been 
accomplished,  it  can  not  be  withdrawn  imtil  the  party  affected  by  it 
has  had  opportunity  to  apply  every  test  for  the  purpose  of  overcom- 
ing its  force  and  effect. 

No  reason  can  be  urged  why  a  different  rule  should  be  applied 
when  an  injured  Hmb  is  the  subject  of  inquiry.  Defendant  had  the 
undoubted  right  in  this  case,  at  any  time  after  the  injuries  had  been 
shown  to  the  jury,  to  have  physicians  examine  the  injured  leg  and 
testify,  as  experts,  to  its  character  and  probable  permanency. 

The  question  was  not  as  to  the  right  of  defendant  to  have  an  ex- 
amination of  the  injuries  made,  but  as  to  the  right  to  test  the  effect 
and  reduce  the  weight  of  evidence  introduced  by  plaintiff. 

Bi^ACK,  C.  J.,  and  Brace,  J.  concur. 


CITY  OF  SOUTH  BEND  v.  TURNER. 
1^6  Ind.  418.     (1900) 

HadlEY,  J.  Suit  by  appellee  to  recover  damages  for  personal  in- 
juries. 

The  first  ground  urged  for  a  new  trial  is  the  refusal  of  the  court, 
upon  appellants'  motion,  to  order  a  physical  examination  of  the 
plaintiff. 

The  overruling  of  this  motion  presents  a  question  of  some  difficulty, 
and  upon  which  the  courts  of  the  country  are  not  entirely  agreed. 
It  is  one,  too,  that  has  but  recently  engaged  the  attention  of  the  courts 


526  Cases  on  Evidence 

of  last  resort.  The  fundamental  principle,  however,  is  an  ancient 
doctrine  of  the  common  law,  limited,  it  is  true,  to  a  few  classes  of 
cases,  among  them  mayhem  and  divorce  cases,  wherein  impotency 
was  charged ;  but  as  the  sources  of  evidence  have  been  extended 
to  parties  and  in  many  other  ways,  its  application  has  been  expanded 
to  meet  new  conditions.  The  doctrine  rests  upon  the  principle  that 
justice  is  the  object  of  judicial  investigation,  and  that  courts  charged 
with  its  administration,  as  a  necessary  means  of  attaining  that  end, 
have  inherent  power  to  require  the  production  of  the  most  infallible 
evidence.  That  its  application  to  personal  injury  cases  is  a  modern 
practice  does  not  disprove  its  common  law  origin. 

Beginning  with  the  case  of  Loyd  v.  Hannibal,  etc.,  R.  Co.,  53  Mo. 
509,  decided  in  1873,  there  have  followed  many  adjudications  upon 
the  power  of  the  trial  court  to  order  a  physical  examination  of  the 
plaintiff  in  suits  for  personal  injuries  upon  request  of  the  defendant. 
In  this  first  case,  the  power,  upon  slight  consideration,  was  denied. 
In  1877,  in  the  well  considered  case  of  Schroeder  v.  Chicago,  etc., 
R.  Co.,  47  Iowa  375,  the  power  was  affirmed.  Following  this  lead, 
the  states  of  Alabama,  Arkansas,  Georgia,  Kansas,  Kentucky,  Michi- 
gan, Missouri,  Minnesota,  Nebraska,  Pennsylvania,  Ohio,  Texas,  and 
Wisconsin  have  reasserted  the  rule  as  announced  in  the  Iowa  case. 

These  cases  assert  the  doctrine  that  courts  are  instituted  by  the 
state  to  administer  impartial  justice  to  contending  parties.  In  such 
contests  it  is  the  duty  of  the  court  to  bestow  upon  the  litigants  equal 
and  exact  justice.  This  cannot  be  done  without  the  court  first  ob- 
taining the  exact  and  full  truth  concerning  the  matters  in  controversy. 
Hence  from  this  duty  of  the  court  to  dispense  exact  justice  is  essen- 
tially implied  all  power  necessary  to  its  performance,  which  includes 
the  power  to  make  subservient  to  its  order  all  persons  and  things 
that  will  afford  the  most  reliable  evidence.  In  quasi  recognition  of 
this  power  it  is  the  law  of  this  State,  and  other  states  so  far  as  we 
have  observed,  that  the  court  may  permit  the  plaintiff  in  both  civil 
and  criminal  cases  to  exhibit  to  the  jury  such  weapons,  implements, 
clothing,  and  wounds  upon  his  person,  or  upon  the  person  of  the 
prosecuting  witness,  as  are  asserted  to  be  the  means,  or  effects,  of  the 
violence  complained  of. 

The  cases  above  cited  as  affirming  the  existence  of  the  power  estab- 
lish the  following  propositions  :  ( i )  That  trial  courts  have  the  power 
to  order  the  medical  examination  by  experts  of  the  injured  parts  of  a 
plaintiff  who  is  seeking  to  recover  damages  therefor;  (2)  that  a  de- 
fendant has  no  absolute  right  to  demand  the  enforcement  of  such  an 


RtAL,  Evidence  527 

order,  but  the  motion  thereior  is  addressed  to  the  sound  discretion 
of  the  trial  court;  (3)  that  the  exercise  of  such  discretion  is  review- 
able on  appeal,  and  correctible  in  cases  of  abuse ;  (4)  that  the  examina- 
tion should  be  applied  for  and  made  before  entering  upon  the  trial, 
and  should  be  ordered  and  conducted  under  the  direction  of  the 
court,  whenever  it  fairly  appears  that  the  ends  of  justice  require  a 
more  certain  ascertainment  of  important  facts  which  can  only  be  dis- 
closed, or  fully  elucidated,  by.  such  an  examination,  and  such  an 
examination  may  be  made  without  danger  to  the  plaintiff's  life  or 
health,  or  the  infliction  of  serious  pain;  (5)  that  the  refusal  of  the 
motion,  when  the  circumstances  appearing  in  the  record  present  a 
reasonably  clear  case  for  the  examination  under  the  rules  stated  is 
such  an  abuse  of  discretion  in  the  trial  court  as  will  operate  to  reverse 
a  judgment  for  the  plaintiff;  (6)  that  such  an  order  may  be  enforced, 
not  by  punishment  as  for  a  contempt,  but  by  delaying  or  dismissing 
the  proceeding. 

For  error  of  the  court  in  overruling  the  motion,  the  appeal  must 
be  sustained.  Judgment  reversed,  with  instructions  to  grant  appel- 
lant's motion  for  a  new  trial. 


THE  A.  T.  &  S.  F.  R.  R.  CO.  v.  THUL. 
2p  Kan.  466.     (188^) 

Valentine,  J.  This  action  was  brought  by  John  Thul  for  dam- 
ages. 

Upon  the  trial,  the  plaintiff  introduced  his  evidence,  and  rested. 
The  evidence  tended  to  prove  the  plaintiff's  entire  case.  It  showed 
the  manner  in  which  he  was  injured,  and  the  nature,  character  and 
extent  of  the  injury.  And  the  evidence,  as  well  as  the  plaintiff's 
petition,  showed  that  it  was  the  injury  to  the  plaintiff's  eyes  of  which 
he  principally  complained.  The  plaintiff  himself  was  a  witness  in 
the  case,  and  testified  in  his  own  behalf.  After  the  plaintiff  rested 
his  case,  the  defendant  requested  the  court  to  have  the  plaintiff  sub- 
mit himself  to  the  examinaion  of  Dr.  A.  D.  WiUiams,  who  was  then 
present,  from  St.  I.ouis,  and  whom  it  was  stated  the  defendant  would 
call  as  a  witness.  This  request  was  made  in  the  following  words,  to 
wit:  "If  the  court  please,  we  ask  that  the  plaintiff  in  this  case,  John 
Thul,  submit  himself  to  the  examination  of  Dr.  Williams,  a  witness 


528  Cases  on  Evidence 

we  shall  call  for  the  defense,  now  here  from  St.  Louis."  This  re- 
quest was  objected  to  by  the  plaintiff,  in  the  following  words,  to  wit: 
"We  object,  under  the  ruling  of  the  53rd  Missouri  Report."  The 
court  below  sustained  the  objection,  in  the  following  words,  to  wit : 
"The  objection  is  sustained."  And  to  this  ruling  of  the  court  the 
defendant  excepted.  Counsel  for  the  defendant  then  addressed  the 
court  as  follows : 

"What  we  want  to  do,  if  the  court  please,  is,  to  have  this  plaintiff 
submit  himself  to  the  examination  of  Drs.  Jones,  Redden,  Stormont, 
and  Williams  of  St.  Louis,  whom  we  propose  to  produce  as  witnesses 
on  the  stand;  and  we  ask  permission  and  order  of  the  court  that  so 
many  doctors  as  we  may  desire  may  have  an  opportunity  to  make  an 
examination  of  the  plaintiff's  eyes  in  the  presence  of  this  court  and 
jury." 

To  this  the  counsel  for  plaintiff  responded  as  follows:  "We  ob- 
ject." And  the  court  then  answered  as  follows :  "The  objection  is 
sustained."  To  which  ruling  of  the  court  the  defendant  again  ex- 
cepted. 

That  portion  of  the  53rd  Missouri  Report  upon  which  the  plaintiff 
made  the  objection,  reads  as  follows: 

"The  proposal  of  the  court  to  call  in  two  surgeons,  and  have  the 
plaintiff  examined  during  the  progress  of  the  trial  as  to  the  extent 
of  her  injuries,  is  unknown  to  our  practice  and  to  the  law.  There 
was  abundant  evidence  on  this  subject  on  both  sides :  any  opinion 
of  physicians  or  surgeons  at  that  time  would  have  only  been  cumu- 
lative evidence  at  best,  and  the  court  had  no  power  to  enforce  such 
an  order."    Loyd  v.  H.  &  St.  J.  Railroad  Co.,  53  Mo.  509,  515,  516.) 

The  objection,  we  would  think  from  the  facts  of  the  present  case 
and  from  this  citation,  was  based  upon  the  grounds  that  such  a  prac- 
tice is  unknown  to  the  law,  and  that  the  court  had  no  power  to  en- 
force the  order  for  such  an  examination.  •  We  think  it  could  not  have 
been  because  there  was  already  abundant  evidence  upon  the  subject  in 
the  case,  for  at  the  time  the  request  was  made  no  physician  or  surgeon 
or  medical  expert  of  any  kind  had  testified  in  the  case;  and  indeed  at 
the  close  of  the  evidence  no  physician  or  surgeon  or  medical  expert 
had  testified  in  the  cn^c  except  Dr.  Williams,  and  he  could  not  tes- 
tify intelligently  upon  the  subject,  for  the  reason  that  he  had  made 
no  personal  examination  of  the  plaintiff. 

In  criminal  cases  a  personal  inspection  of  the  defendant  is  gen- 
erally not  allowable,  for  an  order  of  the  court  compelling  the  de- 
fendant to  submit  to  a  personal  examination  would  virtually  be  com- 


Re;al  Evidence  529 

pelling  the  defendant  to  "be  a  witness  against  himself"  which  is  not 
allowable  under  sec.  10  of  the  Bill  of  Rights,  of  our  constitution. 
However,  where  the  examination  is  only  for  identification  it  is  some- 
times allowable. 

It  was  shown  in  the  present  case  by  the  testimony  of  Dr.  Williams 
that  the  nature,  the  extent  and  the  permanency  of  the  injury  to  the 
plaintiff's  eyes  could  not  be  determined  with  any  reasonable  degree 
of  accuracy  except  by  a  careful  examination,  made  by  some  oculist 
or  person  who  had  made  diseases  and  affections  of  the  eyes  a  special 
study;  and  we  would  naturally  suppose  that  such  would  be  the  case, 
independent  of  the  testimony  of  Dr.  Williams.  Hence  it  would  seem 
that  in  a  case  like  the  present  the  evidence  of  some  such  expert  who 
had  made  such  an  examination  would  be  an  almost  indispensable 
necessity;  but  such  evidence  in  many  cases  could  not  be  obtained 
unless  the  plaintiff  were  first  compelled  by  an  order  of  the  court  to 
submit  himself  to  a  personal  examination  by  some  such  expert.  Now 
is  such  evidence  to  be  lost  and  justice  possibly  defeated,  or  may  the 
court  order  that  such  an  examination  may  be  had?  We  favor  the 
proposition  contained  in  the  latter  portion  of  this  alternative.  We 
would  think  that  the  defendant  in  a  case  like  the  present  would  be 
entitled  as  a  matter  of  right,  upon  a  proper  application  and  upon 
a  proper  showing,  to  have  an  order  made  by  the  court  compelling 
the  plaintiff  to  submit  himself  to  a  personal  examination,  for  the 
purpose  of  ascertaining  the  nature,  character,  extent  and  permanency 
of  his  injuries;  but  of  course  the  court  should  exercise  a  sound 
judicial  discretion  in  making  such  an  order.  The  right  to  the  order, 
being  founded  upon  necessity,  would  not  of  course  extend  beyond 
the  necessities  of  the  case.  If  sufficient  evidence  of  this  kind  had 
already  been  introduced,  the  court  of  course  would  not  be  bound  -to 
make  the  order  for  the  purpose  of  obtaining  other  merely  cumulative 
evidence.  This  principle  will  perhaps  explain  the  ruling  of  the  Mis- 
souri court  in  the  case  of  Loyd  v.  The  H.  &  St.  J.  Rid.  Co.,  mite, 
for  the  court  in  that  case  in  deciding  the  question  says  that  "There 
was  abundant  evidence  upon  the  subject  on  both  sides ;  any  opinion  of 
physicians  or  surgeons  at  that  time  would  have  only  been  cumulative 
evidence  at  best."  The  court  of  course  would  not  be  required  to 
order  an  examination  of  the  plaintiff  by  a  greater  number  of  ex- 
perts than  was  actually  necessary  for  the  purpose  of  justice,  and  it 
would  not  be  required  to  make  the  order  unless  the  proposed  experts 
were  really  competent  to  make  the  examination.     The  court  would 


530  Cases  on  Evidence 

also  have  the  right  to  exercise  its  discretion  in  other  particulars  as 
suggested  by  the  decision  in  the  Iowa  case. 

As  before  stated,  we  think  the  court  below  in  refusing  to  make  any 
order  in  the  present  case,  did  so  solely  upon  the  grounds  that  such  a 
practice  is  unknown  to  the  law,  and  that  the  court  had  no  power  to 
enforce  such  an  order.  In  this  we  think  the  court  below  was  mis- 
taken. We  think  the  order  should  have  been  made;  and  that  the 
court  had  ample  authority  to  enforce  the  same  if  it  had  been  made 
and  resisted. 

Reversed  and  remanded  for  new  trial. 


STATE  OF  IOWA  v.  HARVEY. 

112  Iowa  416.     (1900) 

Ladd,  J.  It  is  enough  now  to  say  that  the  evidence  was  such  as 
to  leave  the  question  of  defendant's  guilt  of  begetting  complainant's 
child,  then  9  months  old,  at  the  least  doubtful.  Her  story  implicating 
him,  appears  not  very  probable,  and  her  admission  of  having  had 
intercourse  with  Waller  a  year  previous  to  its  conception,  and  sleep- 
ing alone  in  a  room  accessible  to  the  latter  continually  up  to  that 
time,  indicates,  notwithstanding  her  denial  of  repetition,  the  possibil- 
ity of  its  having  been  his  offspring.  So  that  the  introduction  of  the 
immature  child  in  evidence  "for  the  jury  to  look  at;  to  examine  as  to 
the  identity  and  resemblance  between  the  baby  and  putative  father" 
— as  stated  by  counsel  for  the  state — may  well  have  played  an  im- 
portant part  in  settling  the  controversy.  The  color  of  its  eyes  and 
hair,  its  complexion,  the  contour  of  the  brows  and  shape  of  hands, 
any  or  all  of  which  may  have  related  back  three  or  four  generations, 
doubtless  were  given  weight  in  making  this  comparison.  What  they 
were  we  have  no  means  of  knowing,  nor  does  this  record  disclose  in 
what  respects  these  differed  from  or  resembled  the  hair,  eyes,  com- 
plexion, brows,  or  hands  of  defendant,  or  of  Waller.  Thus,  the  jury 
based  their  verdict  in  part  at  least,  on  their  individual  knowledge  of 
facts,  or  opinions  resting  on  facts,  of  which  this  court,  on  appeal,  can 
acquire  no  information,  making  of  themselves  "silent  witnesses  in  the 
case,  burdened  with  testimony  unknown  to  both  parties,  and  in  respect 
to  which  no  opportuility  for  cross-examination  or  correction  of  errors, 
if  any,  could  be  afforded  either  party."    See  Close  v.  Samm,  2y  Iowa 


Real  Evidence  531 

507;  Washburn  v.  Railway  Co.,  59  Wis.  370  (18  N,  W.  328).  In 
such  a  case  might  a  new  trial  ever  be  ordered  because  of  the  insuffi- 
ciency of  the  evidence?  Nevertheless  in  this  court  in  State  v.  Smith 
54  Iowa  104,  held  that  a  child  2  years  and  i  month  old  might  be  ex- 
hibited to  the  jury,  though  to  exhibit  one  of  three  months  had  been 
adjudged  an  error  in  State  v.  Danforth,  48  Iowa  43.  While  conced- 
ceding  that  "resemblances  often  exist  between  persons  who  are  not 
related,  and  are  wanting  between  persons  who  are,  "the  ruling  seems 
to  rest  on  the  proposition  that  "what  are  called  'family  resemblance' 
are  sometimes  so  marked  as  scarcely  to  admit  of  a  mistake."  With 
respect  to  proper  age,  it  was  said  that  a  child  which  is  only  3  month's 
old  has  that  peculiar  immaturity  of  features  which  characterizes  an 
infant  during  the  time  that  it  is  called  a  'babe'.  A  child  2  years  old 
or  more  has,  to  a  large  extent,  put  off  that  peculiar  immaturity." 
If  this  is  to  be  the  criterion,  then,  surely,  a  child  of  9  months  is  too 
immature  to  afford  aid  to  the  jury  in  settling  its  paternity.  True, 
resemblances  then  are  frequently  imagined.  But  what  one  will  con- 
strue as  a  similarity,  another,  with  the  same  knowledge  of  the  parties 
between  whom  the  comparison  is  made,  will  be  unable  to  detect.  If 
alike  in  some  respects,  they  differ  in  others.  It  is  all  a  matter  of 
notion,  fancy  or  guesswork,  and  ought  to  be  given  the  slightest  weight 
in  determining  an  issue  fraught  with  such  grave  consequences.  In 
People  V.  Carney,  29  Hun,  47  the  court,  observing  that  children  of 
the  same  family  have  eyes  and  hair  of  different  colors,  declared 
that  it  is  "a  dangerous  doctrine  to  permit  a  child's  paternity  to  be 
questioned  or  proven  by  the  comparison  of  the  color  of  its  hair  or 
eyes  with  that  of  the  alleged  parent."  In  Hanawalt  v.  State,  64  Wis. 
84  (24  N.  W.  489),  the  exhibition  of  a  child  under  a  year  old  was 
held  to  have  been  improper,  the  court  saying,  "In  any  case  this 
kind  of  evidence  is  inherently  unsatisfactory,  as  it  is  all  a  matter  of 
general  knowledge  that  different  persons,  with  equal  opportunities  of 
observation,  will  arrive  at  different  conclusions,  even  in  the  case  of 
mature  persons,  where  a  family  likeness  will  be  fully  developed  if 
there  be  any;  and,  when  applied  to  the  immature  child,  its  worth- 
lessness  as  evidence  to  establish  the  fact  of  parentage  is  greatly  en- 
hanced, and  is  of  too  vague,  uncertain,  and  fanciful  a  nature  to  be 
submitted  to  the  consideration  of  a  jury."  As  opposed  to  such  ex- 
hibitions, see,  also,  Clark  v.  Bradstreet,  80  Me.  466  (15  At.  56,  6  Am. 
St.  Rep.  221);  Risk  v.  State,  19  Ind.  152;  Reitz  v.  State,  33  Ind. 
187;  Ingram  v.  State,  24  Neb.  33  (37  N.  W.  943).  Without  express- 
ing an  opinion  as  to  the  correctness  of  State  v.  Smith,  supra,  this  court 


532  Casks  on  Evidence 

is  not  prepared  to  extend  the  rule  there  approved,  and  sanction  the 
exhibition  of  a  child  under  2  years  of  age  to  the  jury,- as  affording 
any  aid  in  ascertaining  its  parentage ;  and  in  this  class  of  cases,  where 
it  is  well  known,  the  feelings  and  sentiments  so  often  enter  into  the 
contest  the  exhibition  of  the  fruit  of  the  unlawful  relation  cannot 
have  been  otherwise  than  extremely  prejudicial.  An  exception  may, 
however,  exist  where  the  parents  are  alleged  to  be  of  different  races. 
Garvin  v.  State,  52  Miss.  207;  Warlick  v.  White,  76  N,  C.  176.  In 
Gilmanton  v.  Ham,  3  N.  H.  108,  and  Finnegan  v.  Dugan,  14  Allen, 
197,  the  age  of  the  child  exhibited  does  not  appear,  while  comparison 
at  any  age  was  upheld  in  Grant  v.  State,  50  N.  J.  Law,  490.  (14  At. 
6cK)),  and  State  v.  Woodruff,  67  N.  C.  89.  See  also,  Jones  v.  Jones, 
45  Md.  151.  These  decisions  seem  to  have  been  influenced  somewhat 
by  the  ruling  of  Lord  Mansfield  in  the  Douglas  Case,  before  the  house 
of  lords  in  1769,  allowing  resemblance  of  adults  to  be  shown.  That 
marks  of  family  resemblance  often  exist  between  adults  and  even 
mature  children  may  readily  be  conceded,  but  it  does  not  follow  that 
this  is  generally  true  of  nursing  or  immature  babes,  with  unsettled 
features,  and  peculiar  characteristics  undeveloped. 

''  Reversed. 


MARCY  V.  BARNES. 
82  Mass.  161.     (i860) 


Action  of  contract.  Trial  and  verdict  for  the  plaintiff  in  this  court 
before  Hoar,  J. 

Merrick,  J.  This  is  an  action  to  recover  the  contents  of  the 
promissory  note  declared  on,  purporting  to  be  signed  by  all  the  de- 
fendants. Zephaniah  Baker  &  Co.  were  defaulted,  and  Moses  Barnes 
alone  interposed  any  defense.  In  his  answer,  he  denied  the  genuine- 
ness of  the  signature  of  his  name  which  appears  upon  it,  and  alleged 
that  it  had  been  fraudulently  placed  there.  This  constituted  the  issue 
to  be  determined;  and  it  was  conceded  at  the  argument  by  the  coun- 
sel of  both  parties  that  the  precise  question  which  arose  and  was 
contested  upon  the  trial  was  whether  the  name  of  Moses  Barnes  was 
affixed  to  the  note  before  or  after  it  came  into  the  possession  of  the 
plaintiff. 

The  magnified  photographic  copies  of  the  genuine  signatures  of  the 


RtAi,  Evidence  533 

defendant,  and  of  the  disputed  signature,  which  was  submitted  to  the 
inspection  of  the  jury,  were,  we  think,  in  connection  with  the  testi- 
mony of  Mr.  Southworth,  admissible  in  evidence.  Assuming  it  to 
be  true,  as  he  testified,  which  yet  was  a  fact  first  to  be  considered 
and  determined  by  the  jury,  that  the  copies  were  accurate  in  all 
respects,  excepting  only  in  relation  to  sex  and  color,  they  were  capable 
of  affording  some  aid  in  comparing  and  examining  the  different  speci- 
mens of  handwriting  which  were  exhibited  in  the  trial.  It  is  not  dis- 
similar to  the  examination  with  a  magnifying-glass.  Proportions  are 
so  enlarged  thereby  to  the  vision,  that  faint  lines  and  marks,  as  well 
as  the  genuine  characteristics  of  handwriting  which  perhaps  could  not 
otherwise  be  clearly  discerned  and  appreciated,  are  thus  disclosed  to 
observation,  and  afford  additional  and  useful  means  of  making  com- 
parisons between  admitted  signatures  and  one  which  is  alleged  to  be 
only  an  imitation.  Under  proper  precautions  in  relation  to  the  pre- 
liminary proof  as  to  the  exactness  and  accuracy  of  the  copies  pro- 
duced by  the  art  of  the  photographer,  we  are  unable  to  perceive  any 
valid  objection  to  the  use  of  such  prepared  representations  of  original 
and  genuine  signatures  as  evidence  competent  to  be  considered  and 


weighed  by  the  jury. 


Exceptions  sustained  on  another  ground. 


SMITH  V.  LEHIGH  VALLEY  R.  R.  CO. 
1^7  N,  Y.  279-    (1904) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  July  13,  1903,  modi- 
fying and  affirming  as  modified  a  judgment  in  favor  of  plaintiff 
entered  upon  a  verdict  and  affirming  an  order  denying  a  motion  for  a 
new  trial. 

This  action  was  brought  to  recover  damages  for  the  death  of  plain- 
tiff's intestate  alleged  to  have  been  caused  by  the  negligence  of  de- 
fendant. 

Parker,  Ch,  J.  We  are  also  of  the  opinion  that  the  court  erred 
in  admitting  in  evidence  the  photograph  of  deceased.  The  action 
was  to  recover  for  pecuniary  injuries  resulting  from  deceased's  death. 
(Code  Civil  Pro.  sec.  1904.)  Such  injuries  are  to  be  compensated 
for  on  the  basis  of  the  monetary  value  of  the  services  of  deceased 


534  Casss  on  Evidence 

to  her  husband  and  children.  Into  such  a  case  the  personal  element 
does  not  enter,  for  the  law  does  not  compensate  for  grief  or  sorrow, 
but  only  for  the  actual  pecuniary  loss.  The  introduction  in  evidence 
of  the  photograph  of  a  handsome  woman  could  not  be  expected  to 
accomplish  any  other  result  than  to  introduce  the  personal  element 
for  the  consideration  of  the  jury.  Certainly  the  language  employed 
in  Lipp  V.  Otis  Brothers  &  Co.  (i6i  N.  Y.  559,  564)  would  seem 
to  be  applicable  to  the  introduction  of  this  photograph :  "Clearly,  the 
testimony  we  have  been  considering  could  not  render  any  service 
in  the  case  other  than  to  awaken  the  sympathies,  and  thus  influence 
the  judgment  of  the  jurors  in  the  direction  of  a  greater  award,  nor 
is  it  reasonable  to  assume  that  any  other  result  was  expected  from 
it."  In  that  case  this  court  reversed  a  judgment  obtained  by  a  father 
as  sole  next  of  kin,  for  pecuniary  injuries  resulting  from  his  son's 
death.  No  one  except  the  father  was  entitled  to  recover,  and  yet 
plaintiff  was  permitted  to  question  a  brother  of  deceased  as  to  broth- 
ers, sisters,  nephews  and  nieces  of  deceased,  and  their  necessities — • 
testimony  which  pointed  out  opportunities  plaintiflF  would  have  for 
making  charitable  use  of  any  moneys  left  after  satisfying  his  own 
necessities.  The  reason  for  the  decision  in  that  case  calls  for  a  de- 
cision in  this  that  evidence  of  such  a  character  should  not  be  received 
in  cases  where  the  personal  element  is  not  permitted  by  the  statute  to 
enter,  as  in  this  case. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  eVent. 


THE  CITY  OF  OTTAWA  v.  ROZETTA  GILLILAND. 
dj  Kan.  165.     (1901) 

Greene,  J.  The  defendant  in  error  commenced  this  action  against 
the  city  of  Ottawa  to  recover  damages  for  personal  injuries  which 
she  claims  she  sustained  by  reason  of  having  been  tripped  or  thrown 
on  a  defective  sidewalk.  In  the  court  below  she  recovered  judgment. 
The  plaintiff  in  error,  the  defendant  below,  filed  its  motion  for  a  new 
trial  -alleging  all  the  grounds  mentioned  in  the  statute. 

Counsel  for  plaintiff  in  error  present  another  question  which  will 
likely  arise  in  a  new  trial  of  this  cause,  and  for  this  reason  it  demands 
the  attention  of  this  court  at  this  time.     Upon  the  trial,  defendant 


Real  Evidence  535 

requested  the  court  to  appoint  two  reputable  physicians  and  make  an 
order  that  the  plaintiff  below  submit  to  an  examination  by  them,  for 
the  purpose  of  ascertaining  the  location  and  extent  of  her  physical 
injuries.  To  this  the  plaintiff  below  objected,  which  objection  was 
sustained  by  the  court,  and  the  defendant  below  alleges  this  as  error. 

In  actions  for  personal  injuries,  the  exact  location  and  extent  of 
the  injury  is  frequently  the  very  question  in  dispute,  the  fact  to  be 
ascertained.  While  the  court  in  the  exercise  of  its  discretion  should 
protect  the  feelings  and  sensibilities  of  all  litigants,  the  rights  of  the 
parties  and  the  ascertainment  of  the  truth  is  the  chief  object  of  a  trial. 
The  purpose  of  a  trial  is  to  mete  out  exact  justice.  This  cannot  be 
accomplished  when  the  truth  is  suppressed,  and  this  may  be  done,  if 
the  court  has  not  the  power  to  ascertain  what  the  truth  is. 

In  an  action  for  personal  injuries,  the  injured  party  may  call  physi- 
cians, to  whom  he  may  expose  his  person,  not  for  the  purpose  of 
effecting  a  cure,  but  for  the  purpose  of  using  this  expert  testimony  to 
assist  him  in  the  trial  of  his  case.  He  may  also  expose  the  injured 
portion  of  his  person  to  the  jury,  observing  the  rules  of  decency. 
Should  the  litigant  be  permitted  to  withhold  the  truth  or  the  means 
of  ascertaining  what  the  truth  is  simply  because,  in  the  ascertainment 
of  the  truth,  he  may  conceive  the  idea  that  an  indignity  is  being  of- 
fered? That  is  not  an  indignity  which  is  not  so  intended.  May  he 
be  permitted  to  present  so  much  of  the  truth  as  he  desires  and  as  he 
thinks  to  his  interest  and  withhold  the  remainder?  This  would  cer- 
tainly be  his  privilege  if  the  court  does  not  possess  the  power  to  make 
an  order  that  will  develop  the  exact  truth.  It  is  suggested  by  some  of 
the  authorities  which  hold  contrary  to  the  views  herein  expressed, 
that  the  rule  would  operate  harshly  upon  delicate  and  modest  females. 
We  think  such  may  safely  rely  upon  the  courts  of  this  country.  An 
examination  should  not  be  ordered  needlessly,  or  where  there  might 
be  a  shock  to  one's  modesty  or  feelings  of  delicacy.  We  only  decide 
that  the  court  has  the  power ;  it  should  be  exercised  according  to  the 
sound  discretion  of  the  presiding  judge.  It  is  safer  in  the  adminis- 
tration of  justice  to  trust  to  the  courts  to  protect  the  sensibilities  of 
the  parties  in  such  examinations,  so  far  as  it  is  possible  to  do  so,  and 
beyond  that  to  hold  them  subordinate  in  importance  and  sacredness 
to  the  interest  of  justice  than  to  hold  that  the  party  to  a  litigation 
has  it  within  his  power  to  develop  so  much  of  the  facts  as  may  appear 
to  be  to  his  interest  and  then  stop  the  investigation. 

The  great  weight  of  authority  seems  to  favor  this  view.  In  the 
ascertainment  of  the  physical  condition  of  the  litigants  in  divorce  ac- 


S36  Cases  on  Evidence 

tions,  a  physical  examination  was  allowed  at  common  law.  (Devan- 
bagh  V.  Devanbagh,  5  Paige  553,  28  Am.  Dec.  443 ;  Newell  v.  Newell, 
9  Paige  25.)  The  authorities  supporting  this  doctrine  in  actions  for 
personal  injuries  are  numerous  and  ample. 

We  are  of  the  opinion  that  the  trial  court  has  the  power,  in  actions 
for  personal  injuries,  to  require  the  plaintiff  to  submit  to  a  private 
physical  examination  by  a  board  of  physicians  selected  by  the  court; 
that  such  power  should  be  exercised  cautiously  and  only  when  neces- 
sary to  a  full  determination  of  the  facts,  and  with  every  care  possible 
to  protect  the  feelings  and  sensibilities  of  the  party.  In  this  case, 
the  court  did  not  abuse  its  discretion. 

Reversed  on  other  grounds. 


STATE  V.  ANICA  GARRETT  AND  LUCY  STANLEY. 
7/  N.  C.  85.    (1874) 

Indictment  for  murder,  tried  at  Fall  Term,  1873,  of  the  Superior 
Court  of  Washington  county,  before  his  Honor,  Judge  Moore. 

The  prisoners  were  charged  with  the  murder  of  Alvina  Garrett,  a 
girl  of  fourteen  years  of  age ;  on  the  trial,  Lucy  Stanley  was  acquitted. 

The  evidence  for  the  state  established  that  on  the  26th  of  August, 
1873,  the  prisoners  made  an  out-cry  that  the  deceased  carne  to  her 
death  by  her  clothes  accidentally  catching  fire  while  she  was  asleep; 
and  when  the  witness  reached  the  house  where  the  body  of  the  girl,  and 
where  the  prisoners  were,  Anica  Garrett  told  the  witness  that  "she" 
Anica,  "was  asleep  when  she  was  awakened  by  the  deceased  scream- 
ing ;  that  she  went  to  her,  her  clothes  were  still  burning,  and  in  attempt- 
ing to  put  out  the  flames,  she  Anica,  burnt  one  of  her  hands." 

By  Dr.  Walker,  the  examining  physician  on  the  Coroners  inquest,  it 
was  proved  that  the  body  of  the  deceased  girl  was  not  burned  before, 
but  after  death,  there  being  no  serum  in  the  blisters,  &c. 

The  prisoner,  Anica,  while  under  arrest,  and  very  much  agitated  be- 
fore the  Coroner,  and  after  the  jury  had  rendered  their  verdict  against 
her,  in  their  presence,  was  ordered  by  the  Coroner  to  unwrap  her  hand 
she  alleged  had  been  burnt,  and  show  it  to  Dr.  Walker,  so  that  it  might 
be  seen  if  it  had  been  burned  or  not.  This  she  did,  and  there  was  no  in- 
dication whatever  of  any  burn  upon  it.  This  evidence  was  objected  to 
by  the  counsel  for  the  prisoner  because  it  was  in  substance  compelling 
the  prisoner  to  furnish  evidence  against  herself;  and  that  being  under 


Real  Evidence  537 

arrest,  and  alarmed,  nothing  which  she  had  said  or  done  while  under 
arrest,  and  at  the  Coroner's  command,  was  admissible  in  evidence . 
against  her,  she  not  having  been  cautioned  and  informed  df  her  rights 
according  to  law. 

The  court  ruled  that  anything  the  prisoner  said  at  tlie  inquest  was 
inadmissible,  but  that  the  actual  condition  of  her  hand,  although  she 
was  ordered  by  the  Coroner  to  unwrap  it  and  exhibit  to  the  doctor,  was 
admissible  as  material  evidence  to  contradict  her  statement  to  the  wit- 
ness on  the  night  of  the  homicide  and  before  she  was  arrested.  To  this 
ruling,  counsel  for  prisoner  excepted. 

The  jury  returned  a  verdict  of  guilty.  Rule  for  a  new  trial,  granted 
and  discharged.    Judgment  of  death  and  appeal  by  prisoner. 

Bynum,  J.  The  prisoner  objected  to  the  admissibility  of  the  evi- 
dence as  to  the  condition  of  her  hand  and  relied  upon  the  case  of  the 
State  V.  Jacobs,  5  Jones,  259. 

The  distinction  between  that  and  our  case  is  that  in  Jacobs'  case,  the 
prisoner  himself,  on  trial,  was  compelled  to  exhibit  himself  to  the  jury, 
that  they  might  see  that  he  was  within  the  prohibited  degree  of  color, 
thus  he  was  forced  to  become  a  witness  against  himself.  This  was  held 
to  be  error. 

In  our  case,  not  the  prisoners,  but  the  witnesses,  were  called  to  prove 
what  they  saw  upon  inspecting  the  prisoner's  hand,  although  that  in- 
spection was  obtained  by  intimidation. 

The  prisoner  had  alleged  that  she  had  her  hand  burned  in  endeavor- 
ing to  extinguish  the  fire  upon  the  deceased,  and  at  the  Coroner's  in- 
quest she  carried  her  hand  wrapped  up  in  a  handkerchief  and  thus  con- 
cealed it  from  view.  She  was  made  to  unwrap  and  show  her  hand  to 
the  physician,  which  thus  exposed,  upon  examination,  showed  no  indi- 
cation of  a  burn.  It  was  evidently  a  fraud  adopted  to  give  countenance 
and  support  to  her  story,  and  the  Coroner  was  justified  in  exposing  a 
trick  upon  the  public  justice  of  the  country. 

The  later  cases  are  uniform  to  the  point  that  a  circumstance  tending 
to  show  guilt  may  be  proved,  although  it  was  brought  to  light  by  decla- 
ration, inadmissible,  per  se,  as  having  been  obtained  by  improper  in- 
fluence. Arch.  Crim.  PL,  131,  and  note  by  Waterman,  State  v.  John- 
son, 67  N.  C.  55.  Familiar  illustrations  are  where  the  accused  is,  by 
force,  made  to  put  his  foot  in  a  track,  or  allow  the  foot  to  be  measured, 
where  he  is  by  duress  compelled  to  produce  stolen  goods,  or  to  dis- 
close their  hiding  place,  and  they  are  there  found.  In  these  cases  the 
facts  thus  brought  to  light  are  competent  evidence  though  the  declara- 


538  Cases  on  Evidence 

tions  of  the  accused,  made  at  the  time,  are  excluded  as  having  been 
obtained  by  improper  influence. 

We  have  .carefully  examined  the  whole  record,  and  we  find  no  de- 
fect therein. 

There  is  no  error.     This  will  be  certified  to  the  Court  below  that 
further  proceedings  be  there  had,  according  to  law. 

Judgment  affirmed. 

Per  Curiam. 


STATE  V.  LINKHAW. 
6p  N.  C.  214.    (187s) 


Defendant  was  indicted  for  disturbing  a  religious  congregation. 
The  evidence  as  detailed  by  several  witnesses  was  substantially  this : 
Defendant  is  a  member  of  the  Methodist  Church;  he  sings  in  such  a 
way  as  to  disturb  the  congregation ;  at  the  end  of  each  verse,  his  voice 
is  heard  after  all  the  other  singers  have  ceased.  One  of  the  witnesses 
being  asked  to  describe  defendant's  singing,  imitated  it  by  singing  a 
verse  in  the  voice  and  manner  of  defendant,  which  "produced  a  burst 
of  prolonged  and  irresistible  laughter,  convulsing  alike  the  spectators, 
the  Bar,  the  jury  and  the  court." 

There  was  a  verdict  of  guilty.  Judgment,  and  appeal  by  the  de- 
fendant. 

Setti^e,  J.  The  defendant  is  indicted  for  disturbing  a  congregation 
while  engaged  in  divine  worship,  and  the  disturbance  is  alleged  to  con- 
sist in  his  singing,  which  is  described  to  be  so  peculiar  as  to  excite 
mirth  in  one  portion  of  the  congregation  and  indignation  in  the  other. 

Prom  the  evidence  reported  by  his  Honor  who  presided  at  the  trial, 
it  appears  that  at  the  end  of  each  verse,  his  voice  is  heard  after  all 
the  other  singers  have  ceased,  and  that  the  disturbance  is  decided  and 
serious ;  that  the  church  members  and  authorities  expostulated  with 
the  defendant  about  his  singing  and  the  disturbance  growing  out  of  it; 
to  all  of  which  he  replied  that  he  would  worship  his  God,  and  that  as 
part  of  his  worship  it  was  his  duty  to  sing.  It  was  further  in  evidence 
that  the  defendant  is  a  strict  member  of  the  church  and  a  man  of 
most  exemplary  deportment. 

"It  was  not  contended  by  the  State  upon  the  evidence  that  he  had 
any  intention  or  purpose  to  disturb  the  congregation ;  but  on  the  con- 


Real  Evidence  539 

trary,  it  was  admitted  that  he  was  conscientiously  taking  part  in  the 
religious  services." 

This  admission  by  the  State  puts  an  end  to  the  prosecution.  It  is 
true,  as  said  by  his  Honor,  that  a  man  is  generally  presumed  to  in- 
tend consequences  of  his  acts,  but  here  the  presumption  is  rebutted  by 
a  fact  admitted  by  the  State. 

It  would  seem  that  the  defendant  is  a  proper  subject  for  the  dis- 
cipline of  his  church,  but  not  for  the  discipline  of  the  courts. 

Venire  de  novo. 

Per  Curiam. 


OSBORNE  V.  CITY  OF  DETROIT. 
32  Fed.  Rep.  36.     (1886) 

Brown,  J.  The  plaintiff  in  this  case  obtained  a  verdict  of  $10,000 
for  personal  injuries  received  by  her  in  falling  upon  a  defective  side- 
walk  upon  the  north  side  of  Church  street  in  this  city,  between  Mich- 
igan and  Trumbull  avenues.  Defendant  now  moves  for  a  new  trial 
upon  the  following  grounds. 

That  the  court  erred  in  permitting  the  exhibition  of  the  plaintiff  and 
her  condition  to  the  jury  by  Dr.  Gaylord.  The  doctor,  who  had  not 
been  sworn,  exhibited  the  plaintiff  to  the  jury,  and  thrust  a  pin  into 
the  right  side  of  her  face,  her  right  arm  and  leg,  and,  from  the  wit- 
ness' failing  to  wince,  the  jury  were  asked  to  infer  that  there  was  a 
complete  paralysis  of  her  right  side.  Objection  wa§  made  to  this  upon 
the  ground  that  the  doctor  was  not  sworn  as  to  the  instrument  he  was 
using,  nor  was  the  plaintiff  sworn  to  behave  naturally  while  she  was 
being  experimented  upon.  It  is  argued  that  both  the  doctor  and  plain- 
tiff might  have  wholly  deceived  the  court  and  jury  without  laying 
themselves  open  to  a  charge  of  perjury,  and  that  plaintiff  was  not 
even  asked  to  swear  whether  the  instrument  hurt  her  when  it  was  used 
on  the  left  side,  or  did  not  hurt  her  when  used  on  the  right  side;  in 
short,  that  there  was  no  sworn  testimony  or  evidence  in  the  whole 
performance  and  no  practical  way  of  detecting  any  trickery  which 
might  have  been  practiced.  We  know,  however,  of  no  oath  which 
could  be  administered  to  the  doctor  or  the  witness  touching  this  exhi- 
bition. So  far  as  we  are  aware,  the  law  recognizes  no  oaths  to  be 
administered  upon  the  witness  stand  except  the  ordinary  oath  to  tell 


540  Cases  on  EvroENCE 

the  truth,  or  to  interpret  correctly  from  one  language  to  another.  The 
pin  by  which  the  experiment  was  performed  was  exhibited  to  the  jury. 
There  was  nothing  which  tended  to  show  trickery  on  the  part  of  the 
doctor  in  failing  to  insert  the  pin  as  he  was  requested  to  do,  nor  was 
'there  any  cross-examination  attempted  from  the  witness  on  this  point. 
Counsel  were  certainly  at  liberty  to  examine  the  pin  and  to  ascertain 
whether  in  fact  it  was  inserted  in  the  flesh,  and  having  failed  to  ex- 
ercise this  privilege,  it  is  now  too  late  to  raise  the  objection  that  the 
exhibition  was  incompetent.  It  is  certainly  competent  for  the  plain- 
tiff to  appear  before  the  jury,  and,  if  she  had  lost  an  arm  or  a  leg  by 
reason  of  the  accident,  they  could  hardly  fail  to  notice  it.  By  parity 
of  reasoning,  it  would  seem  that  she  was  at  liberty  to  exhibit  her 
wounds  if  she  chose  to  do  so,  as  is  frequently  the  case  where  an  ankle 
has  been  sprained  or  broken,  a  wrist  fractured,  or  any  maiming  has 
occurred.  I  know  of  no  objection  to  her  showing  the  extent  of  the 
paralysis  which  has  intervened  by  reason  of  the  accident,  and  evidence 
that  her  right  side  was  insensible  to  pain  certainly  tended  to  show  this 
paralyzed  condition.  In  criminal  cases  it  has  been  doubted  whether 
the  defendant  could  be  compelled  to  make  profert  of  his  person,  and 
thus,  as  it  were,  make  evidence  against  himself.  The  authorities  upon 
this  subject  are  collated  in  15  Cent.  Law  J.  2,  and  are  not  unequally 
divided,  but  we  know  of  no  civil  case  where  the  injured  person  has 
not  been  permitted  to  exhibit  his  wounds  to  the  jury. 

In  Schroeder  v.  Railroad  Co.,  47  Iowa,  375,  it  was  held  not  only  that 
the  plaintiff  would  be  permitted,  in  actions  for  personal  injuries  to  ex- 
hibit his  wounds  or  injuries  to  the  jury,  but  that  he  might  be  required 
by  the  court,  upon  proper  application  therefore  by  the  defendant,  to 
submit  his  person  to  an  examination  for  the  purpose  of  ascertaining 
the  extent  of  such  injuries,  and  upon  refusal  might  be  treated  as  in 
contempt.    See,  also,  Mulhado  v.  Railroad  Co.,  30  N,  Y.  370. 

Judgment  on  the  verdict. 


STATE  V.  ISAACSON. 
8  So.  Dak.  69.    (1895) 


Fuller,  J.  Under  Sec.  6884  of  the  Comp.  Laws,  plaintiff  in  error 
was  indicted  for,  and  upon  the  trial  found  guilty  of  the  offense  of  ma- 
liciously exposing  a  poisonous  substance,  with  the  intent  that  the  same 


Reai,  Evidence  541 

should  be  taken  by  an  animal,  to  wit,  a  certain  horse. 

Over  the  objection  of  counsel  for  the  accused  the  prosecuting  wit- 
ness and  owner  of  the  horse  mentioned  in  the  indictment  was  allowed 
to  testify  as  follows:  "As  soon  as  the  horse  died,  Andrew  Melander 
and  myself  cut  the  horse  open  and  took  out  the  contents  of  his  stom- 
ach. I  administered  some  of  the  contents  of  the  stomach  of  said  horse 
to  a  hen  on  the  nth  day  of  May,  1895,  and  the  hen  died  in  ten  or 
twelve  minutes  from  the  effects  thereof."  We  think  the  evidence  as 
to  what  he  did  was  admissible.  A  non-expert,  shown  to  be  familiar 
with  evidentiary  facts,  may,  when  the  expression  of  an  opinion  is  not 
involved,  ordinarily  state  the  result  of  his  observations  with  reference 
to  such  facts.  An  ordinary  nonprofessional  witness  in  possession  of 
his  faculties,  who  takes  a  section  from  the  stomach  of  a  horse,  and 
feeds  it  to  a  hen,  which  dies  in  ten  minutes  after  eating  the  same, 
may  testify  as  to  such  facts,  when  material,  for  the  same  are  as  observa- 
ble to  him  as  a  professional  witness.  The  objection,  as  made,  did  not 
go  to  the  qualification  of  the  witness,  but  was  specifically  directed  to 
the  evidence  "relating  to  the  administration  of  said  contents  to  said 
hen,"  and  not  to  the  opinion  of  the  witness  as  to  the  cause  of  the  hen's 
death ;  and  as  no  motion  was  made  to  strike  out  such  evidence,  coun- 
sel's contention  concerning  the  same  cannot  prevail. 

A  regardful  examination  of  the  record  as  presented  discloses  no 
prejudicial  error,  and  the  judgment  of  conviction  is  affirmed. 


JONES  V.  ROYSTER  GUANO  COMPANY. 
6  Ga.  App.  506.     (ipop) 

Jones  brought  suit  against  the  Royster  Guano  Co.  seeking  to  re- 
cover damages  for  the  erection  and  maintenance  by  the  defendant  of 
a  fertilizer  factory  near  his  home  in  such  a  manner  as  to  create  a 
nuisance. 

The  hydrochloric  acid  gas,  sulphuric  acid  gas,  flourine  gas,  and 
other  gases  generated  in  the  factory  killed  vegetables  in  the  plaintiflf's 
garden,  and  corn  and  other  crops  growing  in  his  field,  and  he  had  be- 
come discouraged  and  had  stopped  trying  to  grow  anything  on  his 
land.  Just  about  the  time  the  corn  would  begin  to  tassel  it  would  be 
attacked  by  the  gases  and  other  substances  from  the  factory  and  killed. 
The  flowers  in  the  yard  had  been  dwarfed  and  killed. 


542  Cases  on  Evidence 

The  defendant's  testimony  tended  to  show  that  this  was  one  of  the 
largest  fertilizer  factories  in  the  southern  states,  and  probably  the  best 
equipped.  It  is  equipped  with  the  very  best  obtainable  condensers 
for  the  purpose  of  preventing  the  escape  of  gases  and  fumes,  and 
every  possible  precaution  is  taken  to  keep  the  factory  from  being  ob- 
jectionable and  offensive  to  people  living  in  the  community.  It  is  ab- 
solutely impossible  to  condense  all  the  gases,  and,  when  the  wind  is 
strong,  some  of  them  escape  into  the  surrounding  atmosphere,  and  to 
some  extent  affect  vegetable  and  plant  life. 

RussEi^L,  J.  The  evidence  was  in  sharp  conflict  as  to  every  mate- 
rial issue  in  the  case,  both  as  to  the  manner  in  which  the  factory  was 
operated  and  as  to  the  extent  of  the  damage  suffered  by  the  plaintiff 
in  and  around  his  premises.  The  defendant  denied  that  the  gases, 
fumes,  etc.,  had  killed  any  vegetation  about  the  factory  as  claimed  by 
the  plaintiff's  witnesses.  Over  the  objection  of  the  plaintiff  the  judge 
allowed  the  jury  to  make  a  personal  inspection  of  the  defendant's 
factory  and  of  the  plaintiff's  premises.  The  plaintiff  excepts  to  this 
ruling.  This  was  a  matter  resting  in  the  sound  discretion  of  the  trial 
judge.    County  of  Bigg  v.  Reese,  115  Ga.  346. 

Reversed  on  another  ground. 


THE  PEOPLE  V.  JAMES  HOPE. 
62  Cal.  291.     (1882) 

Appeal  from  a  judgment  of  conviction  and  from  an  order  denying 
a  new  trial  in  the  Superior  Court  of  the  City  and  County  of  San  Fran- 
cisco. 

Sharpstein,  J.  Among  the  articles  exhibited  in  the  presence  of 
the  jury  was  a  "cylindrical  steel  bar  about  half  an  inch  in  diameter  and 
about  eight  inches  long,  which  he  (the  witness  exhibiting  it)  said  he 
had  made  for  the  purpose  of  screwing  upon  it  the  said  coupling  or 
sockets — one  of  which  was  found  in  the  hole  over  the  bank  vault  and 
the  other  in  the  trunk  of  the  defendant.  The  court,  against  the  ob- 
jection of  the  counsel  of  appellant,  permitted  the  witness  "to  make 
experiments  in  the  presence  of  the  jury  with  the  couplings  or  sockets 
attached  to  said  cylindrical  bar."  The  ground  of  the  objection  was 
that  the  cylindrical  bar  was  not  in  evidence.  It  had  not  been  formally 
offered  in  evidence,  and  the  counsel  for  the  prosecution  stated  that 


Reai,  Evidi;nce;  '  543 

they  did  not  intend  to  offer  it  in  evidence.  But  the  witness  had  ex- 
hibited it  on  the  witness  stand,  and  had  stated  that  he  had  it  made  for 
the  purpose  of  screwing  "said  coupling  or  sockets"  upon  it.  The  ob- 
ject of  screwing  "said  coupHng  or  sockets"  upon  it  is  not  stated,  nor 
to  us  apparent.  Still,  in  support  of  the  correctness  of  the  ruling  of 
the  court  below  we  are  bound  to  presume,  unless  the  contrary  appears, 
that  the  object  was  a  legitimate  one.  Perhaps  the  use  to  which  the 
coupling  or  sockets  might  be  put,  could  be  made  more  clear  by  screw- 
ing them  upon  said  cylindrical  bar.  It  was  not  objected  that  the  wit- 
ness was  not  an  expert,  and  we  are  unable  to  determine  from  anything 
before  us  that  it  was  not  necessary  for  him  to  use  said  cylindrical  bar 
in  order  to  elucidate  and  illustrate  clearly  the  character  of  the  "coup- 
ling or  sockets"  which  had  been  admitted  in  evidence.  It  was  not  only 
proper,  but  of  the  first  importance,  that  the  prosecution  should  show 
that  the  implements  found  on  the  vault,  and  in  the  appellant's  trunk, 
were  "burglars'  tools."  And  we  must  presume  that  it  was  for  that 
or  some  other  legitimate  object  that  the  witness  was  permitted  to  ex- 
periment with  some  of  them  in  the  presence  of  the  jury,  and  that  he 
was  allowed  to  use  an  instrument  of  his  own  for  the  purpose  of  mak- 
ing the  experiment  better  understood  than  it  otherwise  would  be.  The 
objection  to  the  question  put  to  the  witness  Aiken  was  properly  over- 
ruled. ' 

Judgment  and  order  affirmed. 


\ 

PEDIGO  v.  COMMONWEALTH. 

los  Ky.  41.     (1898) 

DuRelIvE,  J.  Appellant  was  indicted  jointly  with  Worth  Wilson  for 
burning  the  stock  barn  of  L.  W.  Preston,  on  Alarch  10,  1897,  ^"^» 
having  been  given  a  separate  trial,  was  found  guilty  and  sentenced  to 
three  years'  confinement  in  the  penitentiary. 

Upon  the  trial,  Preston  testified  that,  at  ten  minutes  of  nine  in  the 
evening,  he  discovered  the  fire  coming  through  the  barn  from  the 
southwest  corner;  and  that  he  thereupon  "telegraphed  to  Neighbors, 
at  Elizabethtown,  and  got  his  bloodhound,  that  arrived  the  next  day 
at  noon,  and  carried  him  to  the  rear  of  the  southwest  corner  of  the 
barn;  and  the  dog  took  a  track  and  went  in  a  south  direction  to  the 
lane,  and  went  down  the  lane  three  panels,  and  crossed  the   fence 


544  Cases  on  Evidence 

through  the  place  of  Spencer  into  the  street,  and  then  up  the  street 
toward  the  dormitory,  and  up  to  the  house  of  Nan  Tunstel's,  opposite 
the  dormitory.  The  dog  was  then  taken  to  the  alley  that  leads  out  of 
the  street,  east,  from  the  one  on  which  the  dormitory  is  situated;  and 
the  dog  took  a  track  then,  and  followed  it  up  that  street  through  the 
plank  fence  through  Mr.  Joe  Smith's,  following  a  path  into  the  Knox 
road,  out  that  road  to  Dolph  Depp's  gate,  crossed  the  fence  in  a  low 
place  near  the  gate,  and  then  through  the  swamp  into  the  field  toward 
my  barn  that  was  burned." 

It  is  difficult  to  lay  down  a  general  rule  as  to  the  introduction  of 
testimony  of  this  kind.  It  is  matter  of  common  knowledge,  of  which 
courts  are  authorized  to  take  notice,  that  dogs  of  some  varieties  (as 
the  bloodhound,  foxhound,  pointer  and  setter)  are  remarkable  for  the 
acuteness  of  their  sense  of  smell,  and  for  their  power  of  discrimina- 
tion between  the  track  they  are  first  laid  on  and  others  which  may  cross 
it;  but  it  is  also  matter  of  common  knowledge  that  all  dogs  do  not  pos- 
sess this  power  in  the  same  degree,  and  that  some  dogs  of  purest  ped- 
igree prove  worthless  upon  trial. 

After  a  careful  consideration  of  this  case  by  the  whole  court,  we 
think  it  may  be  safely  laid  down  that,  in  order  to  make  such  testimony 
competent,  even  when  it  is  shown  that  the  dog  is  of  pure  blood  and  of 
a  stock  characterized  by  acuteness  of  scent  and  power  of  discrimina- 
tion, it  must  also  be  established  that  the  dog  in  question  is  possessed 
of  these  qualities,  and  has  been  trained  or  tested  in  their  exercise  in 
the  tracking  of  human  beings,  and  that  these  facts  must  appear  from 
the  testimony  of  some  person  who  has  personal  knowledge  thereof. 
We  think  it  must  also  appear  that  the  dog  so  trained  and  tested  was 
laid  on  the  trail  whether  visible  or  not,  concerning  which,  testimony 
has  been  admitted  at  a  point  where  the  circumstances  tend  clearly  to 
show  that  the  guilty  party  had  been  or  upon,  a  track  which  such  cir- 
cumstances indicate  to  have  been  made  by  him.  When  so  indicated, 
testimony  as  to  trailing  by  a  bloodhound  may  be  permitted  to  go  to  the 
jury  for  what  it  is  worth  as  one  of  the  circumstances  whiclrmay  tend 
to  connect  the  defendant  with  the  crime  of  which  he  is  accused.  When 
not  so  indicated,  the  trial  court  should  exclude  the  entire  testimony  in 
that  regard  from  the  jury. 

For  the  reasons  stated,  the  judgment  is  reversed  and  the  cause  re- 
manded, with  directions  to  award  appellant  a  new  trial,  and  for  further 
proceedings  consistent  with  this  opinion. 


Real  Evidence  545 

DAVIS  V.  STATE. 
46  Fla.  138.     (1903) 

CocKRELL^  J.  Charlie  Davis  was  indicted  in  one  count  for  breaking 
and  entering  a  dwelling  house  with  intent  to  commit  the  felony  of  lar- 
ceny. The  indictment  charged  that  at  the  time  of  such  breaking  and 
entering  the  defendant  was  armed  with  a  dangerous  weapon  and  also 
that  he  made  an  actual  assault  upon  a  person  who  was  lawfully  in  said 
dwelling.     He  was  convicted  and  sentenced  to  life  imprisonmnent. 

Testimony  was  admitted  over  the  defendant's  objection  as  to  the 
action  of  two  dogs  in  following  the  supposed  trail  of  the  burglar  from 
the  scene  of  the  crime.  As  this  case  is  to  be  reversed  on  another  point, 
we  need  not  determine  its  admissibility,  but  think  it  proper  to  notice 
certain  requirements  in  the  introduction  of  such  evidence.  The  ad- 
judged cases  on  this  point  are  few  but  uniform  in  admitting  such  evi- 
dence under  proper  conditions.  Pedigo  v.  Commonwealth,  103  Ky. 
41,  44  S.  W.  143,  42  L.  R.  A.  432,  S.  C.  82  Am.  St.  Rep.  566;  Hodge 
V.  State,  98  Ala.  10,  13  So.  385;  Simpson  v.  State,  11 1  Ala.  6,  13  So. 
572.  But  in  order  that  such  testimony  be  admissible  there  must  be 
preliminary  proof  of  such  character  as  to  show  that  reliance  may  rea- 
sonably be  placed  upon  the  accuracy  of  the  trailing  attempted  to  be 
proved.  Their  should  first  be  testimony  from  some  person  who  has 
personal  knowledge  of  the  fact  that  the  dog  used  has  an  acuteness  of 
scent  and  power  of  discrimination  which  have  been  tested  in  the  track- 
ing of  human  beings.  The  intelligence,  training  and  purity  of  breed 
are  all  proper  matters  for  consideration  in  determining  the  admissibil- 
ity of  such  evidence,  as  is  also  the  behavior  of  the  dog  in  following  the 
track  pointed  out.  In  the  record  before  us  there  is  no  proof  of  the 
breed  of  the  dogs,  and  while  there  is  proof  that  they  had  been  trained 
for  six  months,  there  is  no  proof  that  they  were  trained  in  the  tracking 
of  human  beings.    It  is  questionable  whether  this  is  sufficient. 

Reversed  on  another  ground. 


546  Cases  on  Evidence 

BROTT  V.  STATE. 
70  Neh.  393.     (1903) 

Sullivan,  C.  J.  George  W.  Brett  was  charged  with  burglary  and 
convicted.  The  trial  court  received  as  evidence  of  guilt  the  fact  that 
bloodhounds,  after  being  taken  to  the  place  where  the  ^crime  was 
committed,  appeared  to  trail  the  burglar  to  defendant's  house.  The 
competency  of  this  evidence  is  the  only  question  necessary  to  consider 
in  disposing  of  the  case.  The  conduct  of  the  dogs  was  perhaps, 
rightly  received,  in  connection  with  an  admission  made  by  Brott,  as 
evidence  tending  to  prove  that  he  committed  the  crime  charged  in 
the  information;  but  it  was  also  received  as  proof  of  independent 
crimes  which  the  state  brought  to  the  attention  of  the  jury,  to  which 
the  admission  did  not  relate.  The  only  evidence  of  these  independent 
crimes  was  the  inference  afforded  by  the  conduct  of  the  dogs.  If  such 
evidence  is  incompetent  the  conviction  can  not  stand.  The  argu- 
ment of  the  attorney  general  is  that  the  bloodhound  has  an  excep- 
tionally fine  perception  of  scent;  that,  in  following  a  trail  and  discrim- 
inating between  smells,  he  seldom  or  never  errs;  and  that  knowledge 
of  his  extraordinary  aptitude  is  so  nearly  universal  that  courts 
will  act  upon  it  without  proof.  The  bloodhound  has,  of  course, 
a  great  reputation  for  sagacity,  and  there  is  a  prevalent  belief  that, 
in  the  pursuit  and  discovery  of  fugitive  criminals,  he  is  practically 
infallible.  It  is  a  common  accepted  notion  that  he  will  start  from 
the  place  where  a  crime  has  been  committed,  follow  for  miles  the 
track  upon  which  he  has  been  set,  find  the  culprit,  confront  him  and, 
mirabile  dictu,  by  accusing  bay  and  mien,  declare,  "Thou  art  the 
man."  This  strange  misbelief  is  with  some  people  apparently  incor- 
rigible. It  is  a  delusion  which  abundant  actual  experience  has  failed 
to  dissipate.  It  lives  on  from  generation  to  generation.  It  has  still 
the  attractiveness  of  a  fresh  creation.  "Time  writes  no  wrinkle  on 
its  brow."  But  it  is,  nevertheless,  a  delusion,  an  evident  and  obvious 
delusion.  The  sleuthhound  of  fiction  is  a  marvelous  dog,  but  we  find 
nothing  quite  like  him  in  real  life.  We  repudiate  utterly  the  sugges- 
tion that  there  is  any  common  knowledge  of  the  bloodhound's  capacity 
for  trailing,  which  would  justify  us  in  accepting  his  conclusion  as 
trustworthy  under  circumstances  like  those  disclosed  by  the  present 
record. 

The  judgment  is  reversed,  and  the  cause  remanded  for  further 
proceedings. 

Reversed. 


Real  Evidence  547 

COUNTY  OF  BIBB  v.  REESE. 
113  Ga.  346.     (1902) 

Simmons,  C.  J.  IMrs.  Reese  brought  her  action  against  Bibb  county, 
alleging  that  the  officers  and  agents  of  the  county  had  damaged  her 
by  cutting  down  the  road-bed  in  front  of  her  premises  in  such  a  man- 
ner as  to  render  ingress  and  egress  impossible,  and  to  greatly  injure 
the  value  of  her  property.  Upon  the  trial  of  the  case  the  plaintiflF 
proved  that  her  property  had  been  injured,  and  the  jury  returned  a 
verdict  in  her  favor  for  $1,500.  The  county  made  a  motion  for  a  new 
trial  on  various  grounds,  which  was  refused,  and  it  excepted. 

One  ground  of  the  motion  for  a  new  trial  complains  that  the  court 
below  erred  in  directing,  over  objection  of  counsel  for  the  defendant, 
that  the  jury  be  taken  to  view  the  premises  alleged  to  have  been  dam- 
aged. It  appears  that,  in  compliance  with  a  request  of  counsel  for  the 
plaintiff,  the  court  directed  the  sheriff  and  a  bailiff  to  procure  car- 
riages and  take  the  jury  to  the  premises,  the  judge  accompanying  them 
in  another  carriage.  This  is  the  first  time  that  the  question  here  pre- 
sented has  ever*  been  squarely  before  this  court  for  determination. 
From  an  investigation  of  the  subject  we  find  that  prior  to  the  act  ap- 
proved February  25,  1784  (Cobb's  Dig.  721),  adopting  as  the  law  of 
Georgia  the  common  law  and  such  statute  law  of  England,  with  cer- 
tain exceptions,  as  was  in  force  in  the  colony  before  the  Revolution, 
it  was  the  law  of  England  that  the  judge,  in  all  real  and  mixed  ac- 
tions, might  in  his  discretion  allow  the  jury  to  view  the  premises.  The 
statute  of  Anne,  c.  16,  sec.  8,  recognized  the  right  of  trial  by  view,  and 
prescribed  the  mode  of  procedure  to  be  had  therein.  Considerable  dif- 
ficulty having  been  experienced  through  a  misunderstanding  of  the 
meaning  of  the  statute  referred  to,  "in  1757,  Lord  Mansfield  and  the 
other  judges  took  it  upon  themselves  to  remedy  this  state  of  affairs, 
and  declared  that  they  were  clearly  of  the  opinion  that  a  view  should 
not  be  granted  unless  the  court  were  satisfied  that  it  was  proper  and 
necessary."  26  Cent.  L.  J.  436.  See  also  i  Co.  Lit.  158  b;  5  Bac. 
Abr.  (title  juries)  372;  Stearns  on  Real  Actions,  102;  2  Tidd.  Pr.  796; 
Andres  Steph.  PL  sec.  109;  i  Thomp.  Tr.  sees,  875  et  seq.;  22  Enc. 
PI.  &  Pr.  1053  et  seq.;  Springer  v.  Chicago  (111.)  35  Am.  &  Eng.  Cas. 
180,  186;  and  the  well-written  article  in  26  Cent.  L.  J.,  above  cited,  in 
which  the  question  is  fully  discussed  and  the  authorities  collected.  It 
seems  that  at  common  law  this  right  of  the  judge  to  permit  the  jury 
to  view  the  premises  existed  only  in  real  and  mixed  actions,  and  did 


548  Cases  on  Evidence 

not  extend  to  personal  actions  and  criminal  actions  without  the  con- 
sent of  both  parties.  The  legislature  of  this  State  having  in  1784 
adopted  the  common  law  of  England  as  it  existed  prior  to  1776,  in- 
cluding this  right  of  trial  by  view  in  the  discretion  of  the  trial  judge, 
and  no  repealing  statute  ever  having  been  passed,  that  law  is  still  of 
force  in  Georgia;  as  much  so  as  if  the  legislature  had  expressly 
enacted  it.  The  present  case  being  an  action  to  recover  damages  to 
land,  the  trial  judge  had  the  right,  with  or  without  the  consent  of  the 
parties,  to  direct  the  jury  to  view  the  premises.  The  reason  for  al- 
lowing the  judge  this  authority  is  fully  set  out  in  some  of  the  cases 
above  cited,  especially  in  the  case  of  Springer  v.  Chicago,  from  the 
Illinois  Supreme  Court.  But  whatever  the  reasons  may  be,  whether 
good,  bad  or  indifferent,  it  is  the  law  of  this  State,  the  courts  are 
bound  by  it,  and  this  court  has  no  power  to  reverse  a  trial  judge  for 
adhering  to  it,  unless  there  has  been  an  abuse  of  discretion.  It  was, 
therefore,  not  error  for  the  court  below  to  allow  the  jury  to  view  the 
premises  in  the  present  case. 

Reversed  on  another  ground. 


PETERSON  &  LOTT  v.  LOTT. 

II  Ga.  App.  5s6.     (1912) 

RussELt,  J.  This  was  a  claim  case.  The  property  involved  was 
personal  property.  It  is  assigned  as  error  that  the  court  permitted 
the  jury,  over  the  objection  of  the  plaintiff  in  fi.  fa.,  to  go  out  into 
the  court-yard  and  \-iew  the  mule  which  had  been  levied  on  and  which 
was  claimed.  At  common  law  an  inspection  is  permitted  where  the 
subject-matter  of  the  suit  is  real  or  mixed  property,  but  the  jury  could 
not  view  personal  property  if  such  was  the  subject  of  litigation. 
Inasmuch  as  by  our  adopting  statute  of  1784  the  common  law  became 
of  force  in  this  State,  it  would  seem  that  a  trial  court  is  not  author- 
ized, as  a  matter  of  judicial  discretion,  to  have  personal  property, 
where  such  personal  property  is  the  subject-matter  of  the  action, 
inspected  by  a  jury.  Perhaps  the  consent  of  both  parties  will  be  such 
a  waiver  of  the  error  that  neither  could  except.  But  it  is  our  opinion 
that  if  either  party  objected  it  would  be  ground  for  a  new  trial. 
At  common  law  the  right  to  demand  a  view  appertained  only  to  real 
and  mixed  actions.     "In  the  United  States,"  as  said  by  Mr.  Thomp- 


RtAh  Evidence  549 

son,  in  his  work  on  Trials  (sec.  881),  "the  subject  is  one  generally 
of  statutory  regulations,  and  it  has  been  held  not  competent  for  the 
court  to  order  a  view  against  the  objection  of  a  party,  except  in 
cases  where  the  view  is  authorized  by  statute."  It  is  further  pointed 
out  by  Mr,  Thompson  that  the  courts  proceed  upon  the  conception 
that  it  is  more  in  consonance  with  the  theory  and  method  of  judicial 
trials  that  the  jury  should  base  their  finding  solely  upon  sworn  tes- 
timony, taken  in  open  court,  or  upon  depositions  taken  as  provided 
by  law.  Only  four  States  in  the  Union  (one  of  which  is  Georgia) 
have  failed  to  regulate  the  matter  by  statute ;  Alabama,  Louisiana,  and 
Maryland  being  the  other  three. 

As  the  case  of  Jones  v.  Royster  Guano  Company,  6  Ga.  App.  506, 
in  which  the  question  was  involved,  was,  like  the  case  of  County  of 
Bibb  v.  Reese,  supra,  an  action  to  recover  damages  to  land,  the  ruling 
in  the  latter  case  was  cited  and  followed.  But  in  the  present  case 
the  property  f  which  one  party  desired  the  jury  to  view,  and  to  the 
view  of  which  the  other  party  objected)  was  personal  property  (a 
mule),  and  as  a  view  of  personal  property  was  not  permitted  by  the 
common  law,  the  judge  erred  in  overruling  the  objection  and  in  per- 
mitting the  view.  It  would  seem  to  be  in  the  interest  of  justice  that 
all  avenues  for  entry  of  truth  should  be  permitted,  and  that  the  jury 
should  be  given  the  very  fullest  opportunity  to  know  the  exact  truth 
in  regard  to  every  material  matter  involved  in  a  legal  investigation; 
and,  for  ourselves,  we  see  no  reason  for  any  valid  distinction  between 
a  view  of  real  property  and  personal  property,  other  than  the  greater 
liability  of  the  latter  to  be  subject  to  alteration  and  change  and  even 
this  could  be  controlled  by  evidence  as  to  whether  there  had  been 
any  alteration  of  the  subject-matter  or  not.  But,  as  was  remarked 
by  Chief  Justice  Simmons  in  County  of  Bibb  v.  Reese,  supra,  the 
adoption  of  the  common  law  fixed  the  status  of  the  law  of  Georgia 
upon  the  subject,  and,  in  the  absence  of  any  legislation  authorizing 
the  court  to  permit  a  view  of  personal  property,  which  is  the  subject 
of  dispute,  it  is  error  to  direct  the  jury  to  view  the  property,  especially 
if  either  party  objects. 

Judgment  reversed. 


PART  V. 
DOCUMENTARY  EVIDENCE. 

ALTEBATI0NS.1 

WOOD  V.  STEELE. 
6  Wall.  (73  U.  S.)  80.    (1867) 

SwAYNE,  J.  The  action  was  brought  by  the  plaintiff  in  error  upon 
a  promissory  note,  made  by  Steele  and  Newson,  bearing  date  October 
nth,  1858,  for  $3,720,  payable  to  their  own  order  one  year  from 
date,  with  interest  at  the  rate  of  two  per  cent,  per  month  and  in- 
dorsed by  them  to  Wood,  the  plaintiff. 

Upon  the  trial  it  appeared  that  Newson  applied  to  Allis,  the  agent 
of  Wood,  for  a  loan  of  money  upon  the  note  of  himself  and  Steele. 
Wood  assented,  and  Newson  was  to  procure  the  note.  Wood  left 
the  money  with  Allis  to  be  paid  over  when  the  note  was  produced. 
The  note  was  afterwards  delivered  by  Newson,  and  the  money  paid 
to  him.  Steele  received  no  part  of  it.  At  that  time,  it  appeared  on 
the  face  of  the  note  that  "September"  had  been  stricken  out  and 
"October  nth"  substituted  as  the  date.  This  was  done  after  Steele 
had  signed  the  note,  and  without  his  knowledge  or  consent.  These 
circumstances  were  unknown  to  Wood  and  Allis.  Steele  was  the 
surety  of  Newson.  It  does  not  appear  that  there  was  any  contro- 
versy about  the  facts.  The  argufhent  being  closed,  the  court  in- 
structed the  jury,  "that  if  the  said  alteration  was  made  after  the 
note  was  signed  by  the  defendant,  Steele,  and  by  him  delivered  to  the 
other  maker  Newson,  Steele  was  discharged  from  all  liability  on  said 
note."  The  plaintiff  excepted.  The  jury  found  for  the  defendant, 
and  the  plaintiff  prosecuted  this  writ  of  error  to  reverse  the  judgment. 
Instructions  were  asked  by  the  plaintiff's  counsel,  which  were  re- 
fused by  the  court.  One  was  given  with  a  modification.  Exceptions 
were  duly  taken,  but  it  is  deemed  unnecessary  particularly  to  advert 
to  them.  The  views  of  the  court  as  expressed  to  the  jury,  covered 
the  entire  ground  of  the  controversy  between  the  parties. 

The  state  of  the  case,  as  presented,  relieves  us  from  the  necessity 
of  considering  the  questions, — upon  whom  rested  the  burden  of  proof, 

iHug'hes  on  Evidence,  p.  203.  c;c;o 


Alterations  551 

the  nature  of  the  presumption  arising  from  the  alteration  apparent 
on  the  face  of  the  paper,  and  whether  the  insertion  of  a  day  in  a  blank 
left  after  the  month,  exonerates  the  maker  who  has  not  assented  to  it. 

Was  the  instruction  given  correct? 

It  was  the  rule  of  the  common  law  as  far  back  as  the  reign  of 
Edward  III,  that  a  rasure  in  a  deed  avoids  it.  The  effect  of  al- 
terations in  deeds  was  considered  in  Pigot's  case,  and  most  of  the 
authorities  upon  the  subject  down  to  that  time  were  referred  to. 
In  Master  v.  Miller,  the  subject  was  elaborately  examined  with  ref- 
erence to  commercial  paper.  It  was  held  that  the  established  rules 
apply  to  that  class  of  securities  as  well  as  to  deeds.  It  is  now  settled, 
in  both  England  and  American  jurisprudence,  that  a  material  altera- 
tion in  any  commercial  paper,  without  the  consent  of  the  party 
sought  to  be  charged,  extinguishes  his  Hability.  The  materiality  of 
the  alteration  is  to  be  decided  by  the  court.  The  question  of  fact 
is  for  the  jury.  The  alteration  of  the  date,  whether  it  hasten  or  delay 
the  time  of  payment,  has  been  uniformly  held  to  be  material.  The 
fact  in  this  case  that  the  alteration  was  made  before  the  note  passed 
from  the  hands  of  Newson,  cannot  affect  the  result.  He  had  no 
authority  to  change  the  date. 

The  grounds  of  the  discharge  in  such  cases  are  obvious.  The  agree- 
ment is  no  longer  the  one  into  which  the  defendent  entered.  Its 
identity  is  changed;  another  is  substituted  without  his  consent;  and 
by  a  party  who  had  no  authority  to  consent  for  him.  There  is  no 
longer  the  necessary  concurrence  of  minds.  If  the  instrument  be 
under  seal,  he  may  well  plead  that  it  is  not  his  deed;  and  if  it  be  not 
under  seal,  that  he  did  not  so  promise.  In  either  case,  the  issue  must 
necessarily  be  found  for  him.  To  prevent  and  punish  such  tamper- 
ing, the  law  does  not  permit  the  plaintiff  to  fall  back  upon  the  contract 
as  it  was  originally.  In  pursuance  of  a  stern  but  wise  policy,  it  annuls 
the  instrument,  as  to  the  party  sought  to  be  wronged. 

The  rules  that  where  one  of  two  innocent  persons  must  suffer,  he 
who  has  put  it  in  the  power  of  another  to  do  the  wrong,  must  bear 
the  loss,  and  that  the  holder  of  commercial  paper  taken  in  good  faith 
and  in  the  ordinary  course  of  business,  is  unaffected  by  any  latent 
infirmities  of  the  security,  have  no  application  in  this  class  of  cases. 
The  defendant  could  no  more  have  prevented  the  alteration  than 
he  could  have  prevented  a  complete  fabrication ;  and  he  had  as  little 
reason  to  anticipate  one  as  the  other.  The  law  regards  the  security, 
after  it  is  altered,  as  an  entire  forgery  with  respect  to  the  parties  who 


552  Cases  on  Evidence 

have  not  consented,  and  so  far-  as  they  are  concerned,  deals  with  it 
accordingly. 

The  instruction  was  correct  and  the 

Judgment  is  affirmed. 


GREENFIELD  'SAVINGS  BANK  v.  STOWELL  et  al. 

123  Mass.  ip6.     (1^77) 

Contract  against  Cyrus  A.  Stowell,  Timothy  D.  Richardson  and 
Charles  Stowell,  upon  the  following  promissory  note,  in  which  the 
words  in  Roman  letters  were  printed,  and  those  in  italics  written, 
and  purporting  to  be  signed  by  the  defendants  and  by  George  W. 
Bardwell,  whose  name  appeared  first  among  the  signers: 

Greenfield  Mass.    Sept.  2pth,    1874. 

"$467. 

"For  value  received,  I  promise  to  pay  the  Greenfield  Savings  Bank 
or  order,  four  hundred  and  sixty  seven  dollars  on  demand  with  in- 
terest at  the  rate  of  seven  3-10  per  centum  per  annum  payable  semi- 
annually on  the  first  days  of  June  and  December  of  each  year." 

Gray,  C.  J.  This  action  is  brought  upon  a  promissory  note,  signed 
by  George  W.\  Bardwell,  Cyrus  A.  Stowell,  Timothy  D.  Richardson 
and  Charles  Stowell,  appearing  in  its  present  condition,  and  alleged 
in  the  declaration,  to  be  a  note  for  $467.  Cyrus  A.  Stowell  and 
Timothy  D.  Richardson  only  defend  the  action.  It  is  agreed  that 
the  note  is  upon  a  blank  printed  form;  that,  as  originally  prepared 
and  signed  by  Bardwell,  and  signed  by  the  defendants  at  his  request, 
it  was  a  note  for  ^7;  that  Bardwell  afterwards,  without  the  author- 
ity or  knowledge  or  expectation  of  the  defendants,  fraudulently  pre- 
fixed the  figure  "4"  to  the  figures  "67"  and  the  words  "four  hundred 
and"  to  the  words  "sixty-seven,"  and  in  that  form,  and  with  no  mark 
or  indication  or  alteration,  negotiated  it  to  the  plaintiff,  ^yho  lent  him 
$467  thereon. 

The  plaintiff  contends  that  the  defendants  were  negligent  in  sign- 
ing the  note  with  such  blanks  as  enabled  the  fraudulent  alterations 
to  be  made  without  danger  of  detection,  and  are  therefore  liable 
to  an  innocent  holder  for  value  upon  the  note  as  so  altered.  But 
after  deliberate  advisement,  and  careful  examination  of  the  authori- 


Al^TERATlONS  553 

ties  cited  in  the  learned  arguments  at  the  bar,  we  are  of  opinion  that 
this  position  cannot  be  maintained. 

It  is  a  general  rule  of  our  law,  that  a  fraudulent  and  material 
alteration  of  a  promissory  note,  without  the  consent  of  the  party 
sought  to  be  charged  thereon,  whether  made  before  or  after  the  de- 
livery of  the  note,  renders  the  contract  wholly  void  as  against  him, 
even  in  the  hands  of  one  who  takes  it  in  good  faith  and  without 
knowledge  or  reasonable  notice  of  the  alteration.  Hall  v.  Fuller, 
5  B.  &  C.  750 ;  S.  C.  8  D.  &  R.  464.  Warrington  v.  Early,  2  El.  & 
Bl,  763.  Wood  V.  Steele,  6  Wall.  80.  Angle  v.  Northwestern  Ins. 
Co.,  92  U.  S.  330.  Fay  v.  Smith,  i  Allen  477.  Draper  v.  Wood, 
112  Mass.  315.  Citizens'  National  Bank  v.  Richmond,  121  Mass. 
no. 

Judgment  for  defendants. 


WARDER,  BUSHNELL  &  GLESSNER  COMPANY  v. 
WILLYARD. 

46  Minn.  55/.     (1891) 

CoLi^iNS,  J.  This  was  an  action  originally  brought  in  justice's 
court,  to  recover  the  sum  of  $40  alleged  to  have  become  due  on  No- 
vember I,  1889,  as  an  installment  of  the  agreed  price  of  a  harvesting- 
machine  sold  and  delivered  by  plaintiffs  to  defendant.  The  latter, 
by  his  answer,  admitted  the  sale  and  delivery,  but  averred  that,  in 
accordance  with  the  terms  therewith,  he  executed  and  delivered  to 
the  plaintiffs  his  three  negotiable  promissory  notes,  each  payable  to 
their  order,  aggregating  in  amount  the  stipulated  price  of  the  ma- 
chine; one  of  the  same  being  for  $40,  maturing  November  i,  1889, 
and  having  been  given  for  the  identical  instalment  to  recover  which 
the  action  had  been  instituted.  He  further  alleged  that,  after  the 
making  and  delivery  of  said  note,  the  plaintiffs,  without  the  knowl- 
edge or  consent  of  defendant,  wilfully  and  fraudulently  altered  the 
note  by  changing  the  amount  of  the  same  from  $40  to  $45.  On  these 
pleadings  the  parties  proceeded  to  trial,  although  the  plaintiffs  made 
and  filed  a  so-called  reply,  in  which  the  execution,  delivery  and 
alteration  of  the  note  for  $40  were  admitted.  It  was  furtlier  averred 
therein  that  the  alteration  was  not  wilful  or  fraudulent,  and  that 
it  was  made  without  plaintiffs'  knowledge  or  consent.     The  plaintiffs 


554  Cases  on  Evidence 

had  a  judgment,  from  which  an  appeal  on  questions  of  law  alone 
was  taken  to  the  District  Court,  all  of  the  proceedings  and  the  evi- 
dence being  returned.  The  appeal  here  is  from  a  judgment  in  plain- 
tiffs' favor  in  the  last-named  tribunal. 

The  paper  styled  a  "reply"  was  unauthorized  as  a  pleading  in  the 
case,  and,  as  such,  must  be  treated  as  a  nullity. 

As  the  plaintiffs  could  not  maintain  an  action  upon  the  materially- 
altered  promissory  note,  they  were  compelled  to  resort  to  the  original 
consideration  as  a  foundation  for  their  claim;  and  the  question  then 
arose,  and  is  now  presented,  of  their  right  to  recover  on  the  indebted- 
ness for  which  the  note  was  given.  From  an  examination  of  the  au- 
thorities, it  appears  to  be  well  settled  that  a  recovery  is  not  permitted, 
in  any  form  of  action,  where  the  holder  of  a  written  security  or 
evidence  of  a  debt  has  altered  or  changed  the  instrument  in  a  mate- 
rial part,  to  his  own  advantage  and  with  intent  to  defraud  his  debtor. 
The  law  is  stated  to  be  that,  when  the  holder  of  a  bill  or  note  fraudu- 
lently alters  its  legal  effect,  he  not  only  destroys  the  instrument  by 
thus  destroying  its  legal  identity,  but  he  also  extinguishes  the  debt 
for  which  it  was  executed  and  delivered.  Daniel,  Neg.  Inst,  sec. 
1410a;  Rand.  Com.  Paper,  sec.  1763;  Chalm.  Dig.  Bills  &  N.  art.  249; 
Chit.  Bills,  looq,  and  cases  cited  in  each  of  these  volumes. 

We  are  very  clearly  of  the  opinion  that,  if  the  alteration  of  the 
instrument  be  a  material  one,  it  is  presumed  to  have  been  fraudulently 
made,  and  it  is  incumbent  upon  the  holder  to  explain  it.  The  act  is 
apparently  fraudulent.  It  is  wrongful,  and  naturally  indicates  a 
wrongful  intent  which  requires  an  explanation  to  excuse  it.  The 
holder  of  a  note  or  bill  which  has  been  altered  in  a  material  part  must 
be  required  to  show  that  the  change  was  made  innocently,  or  for  a 
proper  purpose,  or  by  a  stranger,  or  it  would  follow  that,  when  the 
most  glaring  forgeries  have  been  committed  by  alterations  of  nego- 
tiable instruments,  the  maker  or  the  party  sought  to  be  charged  would 
have  to  discover  the  fraudulent  motive  of  the  forger,  and  establish  it 
by  proof.  The  party  in  default,  and  who  ordinarily  must  have  knowl- 
edge of  all  the  circumstances  attending  the  alteration,  must  bear  the 
burden  of  explaining  it,  and  of  extricating  himself.  Daniel,  Neg. 
Inst.  sees.  1412,  1413,  and  Rand.  Com.  Paper,  sec.  1785,  with  cases 
cited;  Milbery  v.  Storer,  75  Me.  69;  Croswell  v.  Labree,  81  Me.  44; 
Robinson  v.  Reed,  46  Iowa  219. 

Judgment  reversed. 


Alterations  555 

WILSON  V.  HAYES  et  al. 
40  Minn.  5^1-     (^^^P) 

This  action  was  brought  in  the  District  Court  for  Crow  Wing 
County,  and  was  tried  by  Sleeper,  J.,  certain  issues  as  to  the  fact  of 
time,  etc.,  of  the  alteration  of  the  note  mentioned  in  the  opinion  being 
submitted  to  a  jury.  Plaintiff  appeals  from  an  order  by  Holland,  J., 
refusing  a  new  trial. 

Mitchell,  J.  On  August  27,  1885,  plaintiff  loaned  to  defendant 
Douglas  $5,000,  for  which  the  latter  executed  his  promissory  note, 
secured  by  a  mortgage  on  certain  real  estate  upon  which  he  had 
executed  a  prior  mortgage  to  the  Minneapolis  Loan  &  Trust  Com- 
pany. It  had  been  previously  agreed  between  plaintiff  and  Douglas 
that  plaintiff  was  "to  take  an  assignment"  of  the  prior  mortgage,  and 
that  Douglas  should  have  three  years  in  which  to  redeem  the  property. 
In  September,  1885,  Wilson  indorsed  and  sold  Douglas's  note  to  the 
Bank  of  Minneapolis,  but  made  no  formal  assignment  of  the  mort- 
gage. Wilson  not  having  obtained  any  assignment  of  the  Loan  & 
Trust  Company's  mortgage,  and  default  having  been  made  in  its 
conditions,  the  company  foreclosed  and  bid  in  the  property  on  the 
23rd  of  July,  1887,  and  subsequently  transferred  the  certificate  of 
sale  to  defendant  Hayes,  who  was  a  judgment  creditor  of  Douglas, 
junior  to  both  mortgages.  Shortly  before  the  expiration  of  the  time 
of  redemption,  Wilson  applied  to  Hayes  for  an  assignment  of  the 
certificate  of  sale,  which  the  latter  refused  to  give.  Thereupon  Wil- 
son repurchased  Douglas's  note  from  the  Bank  of  Minneapolis,  filed 
his  intention  to  redeem  as  mortgagee,  and  on  July  25,  1888,  presented 
to  the  sheriff  who  made  the  sale  his  mortgage  and  affidavit  required 
by  statute,  and  tendered  the  proper  amount  of  money,  and  demanded 
a  certificate  of  redemption.  The  sheriff,  at  the  instance  and  direc- 
tion of  Douglas  and  Hayes,  refused  to  accept  the  money  or  allow 
plaintiff  to  redeem.  Hayes  now  claims  to  own  the  property  under 
the  foreclosure  of  the  trust  company  mortgage.  Plaintiff  brings  this 
action  to  enforce  his  right  of  redemption. 

The  last  and  principal  defense  is  that  Wilson  fraudulently  altered 
the  note  secured  by  the  mortgage,  after  its  execution,  by  erasing 
the  word  "annually"  and  inserting  the  word  "quarterly,"  so  as  to 
make  the  interest  payable  quarter-yearly  instead  of  yearly,  thereby 
destroying  the  instrument  and  extinguishing  the  debt.  Plaintiff  in- 
terposed a  reply  putting  in  issue  the  alteration,  and   further  alleg- 


556  Cases  on  Evidence 

ing  (as  we  may  fairly  construe  it  in  the  absence  of  any  specific 
objection  to  the  pleading)  that  Douglas  had  ratified  the  note  in  its 
present  condition  by  paying  interest  on  it,  with  full  knowledge  of  all 
the  facts.  Upon  this  issue  as  to  the  alteration  of  the  note  the  court 
submitted  certain  questions  to  the  jury,  their  answers  to  which  were 
in  substance  that  the  note  was  altered  after  its  execution,  without 
the  knowledge  or  consent  of  Douglas,  by  some  one  to  the  jury  un- 
known, but  by  and  with  the  knowledge  and  authority  of  Wilson. 

'  The  court,  at  the  request  of  defendants,  and  against  plaintiff's 
objection,  instructed  the  jury,  that  in  the  absence  of  any  evidence 
as  to  when  the  alteration  was  made,  it  would  be  their  duty  to  find 
that  it  was  made  after  delivery;  that  such  was  the  presumption  of 
law,  in  the  absence  of  explanation ;  and  that  the  burden  of  proof 
was  upon  plaintiff,  as  holder,  to  show  that  it  was  made  before  execu- 
tion. This  instruction,  in  various  forms,  was  repeated  and  em- 
phasized, and  is  here  assigned  as  error.  The  question  of  presumption 
and  burden  of  proof,  where  interlineations  or  erasures  appear  on  the 
face  of  an  instrument,  is  one  upon  which  there  is  a  wilderness  of 
authorities  and  much  conflict  of  opinion.  Any  attempt  to  cite  or  con- 
sider the  innumerable  cases  on  this  question  would  be  both  imprac- 
ticable and  useless.  The  rule  adopted  by  some  authorities  is  that  the 
presumption,  in  the  absence  of  evidence  to  the  contrary,  is  that  the 
alteration  was  made  before  execution,  and  therefore  that  no  explana- 
tion is  required  in  the  first  instance;  while  others  hold,  in  accordance 
with  the  instruction  of  the  trial  court  in  this  case,  that  the  presump- 
tion of  law  is  that  the  alteration  was  made  after  delivery,  and  there- 
fore the  burden  is  upon  the  holder  to  explain  it,  and  show  that  it 
was  made  under  circumstances  that  would  not  invalidate  the  instru- 
ment. In  addition  to  these  two  leading  and  opposing  views,  different 
courts  have  adopted  certain  intermediate  or  compromise  rules,  none 
of  which  need  be  here  referred  to,  except  one,  seemingly  adopted 
by  some  very  eminent  courts,  to  wit,  that  the  alteration  raises  a  pre- 
sumption against  the  instrument  when  it  is  suspicious ;  otherwise, 
not.  But  this  furnishes  no  definite  rule  by  wliich  to  determine  when 
it  is  not.  Who  is  to  determine,  and  by  what  test,  whether  the  altera- 
tion is  suspicious?  And,  if  held  suspicious,  when  must  it  be  explained, 
— before  or  after  it  is  admitted  in  evidence?  Evidence  as  to  when, 
by  whom,  and  with  what  intent,  an  alteration  was  made  may  be 
one  or  both  of  two  kinds,  extrinsic  or  intrinsic ;  the  latter  being  that 
furnished  by  the  inspection  of  the  instrument  itself,  such  as  its  ap- 
pearance, the  nature  of  the  alteration,  etc.     These  things,  considered 


Al^TERATIONS  557 

in , connection  with  the  relation  of  the  parties  to  the  instrument  may 
often  constitute  important  evidence.  And  it  seems  to  us  that  the  rule 
just  referred  to  amounts  to  nothing  more  than  saying  that  in  some 
cases  this  intrinsic  evidence  may  tend  to  prove  that  the  alteration 
was  made  after  delivery,  and  therefore  throw  the  preponderance  on 
that  side,  unless  the  holder  of  the  instrument  produces  extrinsic 
rebutting  evidence.  Thus  construed,  we  would  find  no  special  fault 
with  the  rule.  But  it  is  incorrect  to  call  this  a  presumption  of  law, 
it  is  simply  an  inference  of  fact  drawn   from  evidence  in  the  case. 

The  doctrine  that  the  presumption  of  law  is  that  the  alteration  was 
made  after  delivery,  and  that  the  burden  is  on  the  holder  in  the  first 
instance  to  explain  it,  seems  to  us  to  be  unsound  as  well  as  harsh. 
Presumptions  of  law,  if  indulged  in,  should  be  in  favor  of  innocence 
rather  than  guilt.  Moreover,  all  disputable  presumptions  of  law  are 
based  upon  the  experienced  course  of  human  conduct  and  affairs, 
and  are  but  the  result  of  the  general  experience  of  a  connection  be- 
tween certain  facts ;  the  one  being  usually  found  to  be  the  companion 
or  effect  of  the  other.  Hence  such  presumptions  ought  to  be  con- 
formable to  the  experience  of  mankind,  and  the  inferences  which, 
in  the  light  of  that  experience,  men  would  naturally  draw  from  a 
given  state  of  facts. 

The  mere  existence  of  an  interlineation  or  erasure  in  an  instrument 
would  not  naturally  or  ordinarily  produce  an  inference  in  the  minds 
of  men  that  it  had  been  fraudulently  altered  after  execution.  Indeed, 
unless  the  alteration  was  of  such  a  suspicious  character  as  to  furnish 
intrinsic  evidence  to  the  contrary,  we  think  the  natural  inference 
would  be  that  it  was  a  legitimate  part  of  the  instrument,  and  was 
made  at  or  before  its  execution.  We  are  therefore  of  opinion  that 
the  correct  rule  is  that  the  burden  is  upon  the  maker  to  show  that 
the  alteration  was  made  after  delivery;  or,  perhaps,  to  state  the 
proposition  with  more  precision,  the  proof  or  admission  of  a  signature 
of  a  party  to  an  instrument  is  prima  facie  evidence  that  the  instru- 
ment written  over  it  is  his  act  and  this  prima  facie  evidence  will  stand 
as  binding  proof,  unless  the  maker  can  rebut  it  by  showing  by  evi- 
dence that  the  alteration  was  made  after  delivery;  and  that  the  ques- 
tion when,  by  whom  and  with  what  intent,  the  alteration  was  made, 
is  one  of  fact,  to  be  submitted  to  the  jury  upon  the  whole  evidence, 
intrinsic  and  extrinsic. 

Many  authorities,  however,  while  admitting  that  the  general  rule 
is  that  the  law  presumes  that  an  alteration  in  an  instrument  is  a 
legitimate  part  of  it  until  the  contrary  appears,  hold  that  this  rule 


558  Cases  on  Evidence 

does  not  extend  to  negotiable  securities.  Most  of  the  text-books  seem 
to  lay  this  down  as  the  law,  but  at  the  same  time  admit  that  the  oppo- 
site view  has  the  sanction  of  eminent  judicial  authority. 

Our  conclusion,  therefore,  is  that  the  instruction  of  the  court  below 
was  erroneous,  and  for  that  reason  the  order  refusing  a  new  trial 
must  be 

Reversed. 


WADE  V.  WITHINGTON. 
83  Mass.  561.     (1861) 


Contract  by  the  indorsee  against  the  maker  of  a  promissory  note 
for  one  hundred  and  forty  dollars.  The  answer  denied  the  making 
of  the  note,  and  averred  that  it  had  been  fraudulently  altered  after 
it  was  signed,  by  the  addition  of  the  words  "and  forty,"  so  as  to  make 
it  appear  to  be  a  note  for  one  hundred  and  forty  dollars  instead  of 
for  one  hundred  dollars. 

B1GEI.0W,  C.  J.  The  only  point  on  which  the  plaintiff  now  insists 
in  support  of  his  exceptions  is,  that  the  judge  omitted  to  instruct  the 
jury,  that  if  the  alteration  in  the  note  was  such  that  it  could  not  be 
detected  on  a  careful  scrutiny,  it  would  not  be  a  defense  against 
the  note  in  the  hands  of  the  plaintiff,  who  was  an  indorsee  for  a 
valuable  consideration.  But  we  do  not  understand  such  to  be  the 
rule  of  law.  On  the  contrary,  the  well  settled  doctrine,  is,  that  a 
material  alteration  in  a  bill  or  note,  after  its  execution  and  delivery 
to  the  payee,  or  after  its  endorsement,  vitiates  the  instrument  except 
as  against  parties  consenting  to  the  alteration.  Master  v.  Miller,  4 
T.  R.  320.  S.  C,  2  H.  Bl.  140.  Chit,  on  Bills  (8th  ed.)  204.  Davis 
v.  Jenney,  i  Met.  221.  Fay  v.  Smith,  ante,  477.  This  doctrine  rests 
on  the  principle  that  parties  can  be  held  liable  only  on  their  con- 
tracts as  originally  made  and  entered  into  by  them.  The  identity  of 
the  instrument  with  that  which  was  executed  by  the  defendant  is  an 
essential  element  in  every  action  upon  a  wrtten  contract,  from  which 
his  assent  to  its  terms  may  be  fairly  presumed.  If  this  is  changed 
by  a  material  alteration  without  the  privity  of  the  party  liable  upon 
it,  it  ceases  to  be  his  contract.  It  is  a  mistake  to  suppose  that  any 
different  rule  in  this  particular  is  applicable  to  promissory  notes  and 
bills  of   exchange   from  that   which   governs   deeds   and   other   con- 


Alterations  559 

tracts.  The  law  in  giving  peculiar  sanction  to  negotiable  paper  in 
order  to  secure  its  free  circulation  and  to  protect  bona  fide  holders  for 
value  who  receive  it  before  its  maturity,  does  not  go  to  the  extent  of 
holding  a  party  liable  on  a  contract  into  which  he  never  entered,  and 
to  which  he  has  not  given  his  assent. 

The  case  of  Young  v.  Grote,  4  Bing.  253;  S.  C,  12  Moore  484, 
on  which  the  plaintiff  relies,  is  very  different  from  the  case  at 
bar.  There  a  check  was  filled  up  by  tjie  agent  of  the  drawer  for 
a  certain  amount,  and  afterwards  altered  by  him  to  a  much  larger 
sum  before  it  was  passed  into  circulation,  or  had  become  a  binding 
contract  in  the  hands  of  a  bona  fide  holder.  It  was  held  that  the 
banker  who  paid  the  check  for  the  larger  amount  had  a  right  to  retain 
against  the  drawer  the  full  sum  paid  by  him,  because  the  check  was 
drawn  in  so  improper  and  careless  a  manner  as  to  enable  an  agent  of 
the  drawer  to  practise  a  fraud  on  an  innocent  party.  This  decision 
rests  on  the  principle  that  where  one  of  two  innocent  parties  is  to  bear 
a  loss,  it  must  fall  on  him  who  employed  a  dishonest  agent  and  care- 
lessly furnished  him  with  the  means  of  committing  a  fraud.  The  same 
principle  was  recognized  by  this  court  in  the  early  case  of  Putnam  v. 
Sullivan,  4  Mass.  45,  where  indorsers  were  held  liable  on  a  promissory 
note,  which  they  had  left  in  blank  with  their  clerk,  and  who  had  per- 
mitted the  note  to  be  filled  up  and  put  in  circulation  for  a  purpose  dif- 
ferent from  that  for  which  it  was  intrusted  to  his  possession.  These 
are  cases,  where  parties  have  been  held  liable  on  a  negotiable  check 
and  note  fraudulently  filled  up  and  put  in  circulation  by  their  agents, 
to  whom  they  were  intrusted  with  the  signatures  in  blank.  But  they 
rest  on  a  very  different  principle  from  that  applicable  to  notes  and  bills 
which  have  been  fraudulently  altered  in  material  particulars  by  third 
persons,  holding  no  relation  of  agency  to  the  parties,  and  after  they 
have  been  executed  and  delivered  as  binding  contracts.  In  such  cases, 
the  parties  to  the  note  have  a  right  to  say  that  it  was  not  the  contract 
into  which  they  entered. 

Exceptions  overruled. 


560  Cases  on  Evidence 

BUSS  V.  McINTYRE  et  al. 
18  Vt.  466.    (1846) 

Trespass  quare  clausum  fregit.  Plea,  the  general  issue,  and  trial  by 
jury,  Redfield,  J.,  presiding. 

On  trial  it  appeared,  that  the  plaintiff,  on  the  first  day  of  May,  1844, 
was  the  owner  of  the  premises  described  in  his  declaration,  consisting 
of  a  clothier's  shop,  dwelling  house  and  out  buildings,  and  that  on  that 
day  he  conveyed  them  by  deed  to  one  Johnson,  and  delivered  to  him 
the  possession;  that  Johnson  continued  to  occupy  the  premises  under 
the  deed  until  the  fourteenth  day  of  August,  1844,  when  he  re-con- 
veyed the  premises  to  the  plaintiff  and  took  from  him  a  lease  of  the 
premises  for  the  term  of  nine  years,  reserving  a  rent,  and  continued 
in  possession  of  the  premises,  under  the  lease,  until  the  twenty  first 
day  of  October,  1844.  The  plaintiff  claimed,  that  the  lease,  as  exe- 
cuted, contained  a  clause  securing  to  him  the  right  of  re-entry  upon 
the  premises,  in  case  of  non-performance  by  Johnson  of  certain  stip- 
ulations in  the  lease,  and  that  that  clause  had  been  erased  by  Johnson, 
without  the  knowledge  or  consent  of  the  plaintiff.  The  erasure  was 
apparent  upon  the  lease ;  but  it  was  claimed  by  the  defendant,  that  it 
was  made  before  the  lease  was  executed. 

Upon  these  facts  the  county  court  instructed  the  jury,  that  the  plain- 
tiff was  not  entitled  to  maintain  this  action ;  to  which  decision,  the 
plaintiff  excepted. 

Williams,  Ch.  J.  In  this  case  the  court  decided,  upon  the  evidence, 
that  the  plaintiff  was  not  entitled  to  recover.  It  appears  to  us,  that 
the  case  should  have  been  submitted  to  the  jury ;  and,  if  the  facts  were 
as  claimed  by  the  plaintiff,  he  was  entitled  to  recover.  There  was  ap- 
parent, on  the  lease  executed  by  the  plaintiff  to  Johnson,  a  material 
alteration  and  erasure,  by  which  the  estate  of  Johnson  was  enlarged. 
The  right  of  the  plaintiff  to  re-enter  was  erased,  and  the  situation  of 
the  grantor  and  grantee  was  materially  changed.  If  this  alteration 
and  erasure  were  made  by  Johnson,  under  whom  the  defendants  acted, 
the  plaintiff  had  a  right  to  recover;  and  whether^ it  was  so  altered  by 
him  is  a  question  which  should  have  been  submitted  to  the  jury. 

The  plaintiff  claimed  a  right  to  re-enter,  on  being  denied  the  rights 
secured  to  him  by  the  stipulations  in  the  lease.  These  rights  were  se- 
cured to  him  by  that  clause  in  the  lease,  which  is  erased.  In  this  view, 
alone,  it  was  important  to  have  that  fact  passed  upon  by  the  jury. 

But,  moreover,  if  this  erasure  was  made  by.  Johnson,  it  destroyed 


Alterations  561 

all  his  future  rights  under  that  lease.  And  although  it  might  not  di- 
vest an  estate  already  vested,  and  might  not  have  operated  on  his  acts 
committed  before  the  alteration  was  made  (questions,  however,  which 
are  not  now  to  be  decided)  in  odium  spoliatoris  he  must  be  considered 
as  having  destroyed  the  evidence  of  his  title  fraudulently  and  thereby 
lost  all  his  subsequent  claim  under  and  by  virtue  of  the  same,  either  to 
retain  the  possession,  or  preclude  the  plaintiff  from  entering  on  the 
premises  leased. 

The  judgment  of  the  county  court  is  therefore  reversed. 


DOVER  V.  ROBINSON  et  al. 
64  Me.  183.     (1874) 

Barrows,  J,  Upon  the  testimony  here  reported  the  question  seems 
to  be  whether  the  inhabitants  of  a  town  can  maintain  an  action  against 
the  sureties  upon  a  collector's  bond  originally  given  in  the  penal  sum 
of  twenty-five  hundred  dollars  when  said  penal  sum  has  been  altered 
by  the  principal  in  the  bond,  since  its  dehvery,  with  the  knowledge  and 
consent  of  the  selectmen  of  the  town,  from  twenty-five  hundred  to 
twenty-five  thousand  dollars,  without  the  knowledge  of  the  sureties, 
and  in  the  absence  of  all  proof  of  a  subsequent  ratification  by  them. 
The  proposition  that  these  are  facts  sufficient  to  sustain  the  sureties' 
plea  that  such  altered  bond  is  not  their  deed,  would  seem  to  admit  of 
little  doubt.     It  is  not  a  case  of  spoliation  by  a  stranger. 

To  sustain  the  present  suit  against  the  sureties  we  have  a  written 
obligation  which  has  been  vitiated  as  an  instrument  of  evidence  by  the 
deliberate  intentional  act  of  the  plaintiff's  agents,  an  act  done  appar- 
ently  to  secure  themselves  from  the  blame  which  might  attach  to  them 
for  their  carelessness  in  accepting  an  inadequate  security,  but  an  act 
which  has  effectually  deprived  the  town  for  which  they  acted  of  any 
right  of  action  against  these  sureties  upon  this  bond,  as  if  they  had 
never  executed  any  bond  at  all.  It  is  not  their  deed.  But  there  is  an- 
other view  which  is  equally  fatal  to  the  plaintiffs'  case.  The  plaintiff 
town  presents  itself  here  in  this  very  suit  in  the  attitude  of  ratifying 
this  act  of  their  selectmen. 

Plaintiffs  have  leave  to  discontinue  as  to  the  sureties. 


562  Cases  on  Evidence 

McMURTREY,  Admr.  v.  SPARKS. 

yi  Mo.  App.  126.    (1897) 

Bond,  J.    This  suit  is  upon  the  following  note: 

"$400.  June  9th,  1895. 

"Six  months  after  date  I  promise  to  pay  to  the  order  of  J.  E. 
McMurtrey,  administrator  of  the  estate  of  J.  P.  McMurtrey,  four 
hundred  dollars,  at  eight  per  cent.  This  note  given  in  lieu  of  one 
nearly  debarred.  Value  received  with  interest  at  eight  per  cent 
per  annum.  William  Sparks." 

The  answer  averred  that  plaintiff  with  intent  to  make  valid  what 
he  deemed  invalid,  had  altered  the  date  of  note  without  defendant's 
knowledge  or  consent  and  hence  the  note  was  not  executed  by  de- 
fendant. The  cause  was  submitted  to  the  court  without  a  jury.  There 
was  an  agreed  statement  of  facts,  to  wit:  "It  is  admitted  by  counsel 
that  the  note  was  originally  dated  on  the  ninth  day  of  June,  1895, 
that  the  date  was  changed  by  plaintiff,  the  holder,  to  June  17,  1895, 
and  then  changed  back  again  to  its  original  date,  June  9,  1895,  and 
that  the  change  was  made  by  plaintiff  for  the  reason  that  plaintiff 
thought  the  note  was  illegal,  having  been  made  upon  Sunday;  that 
the  plaintiff  was  afterward  informed  that  he  was  mistaken  and  he 
changed  it  back  to  the  original  date.  It  is  further  admitted  that  the 
change  was  made  on  the  note  without  the  knowledge  or  consent  of  the 
defendant,  and  after  it  had  been  signed  by  defendant  and  delivered." 
There  was  proof  that  the  note  in  question  was  one  given  in  considera- 
tion for  one  heretofore  made  by  defendant  to  plaintiff's  intestate, 
which  was  "nearly  out  of  date."  There  was  a  verdict  and  judgment 
for  defendant,  from  which  plaintiff  appealed. 

The  first  point  urged  on  this  appeal  is,  that  the  changes  in  the  date 
of  the  note  shown  in  the  agreed  statement  of  facts  did  not  avoid  it 
as  to  defendant.  The  change  of  the  date  of  a  note  is  a  material  one, 
and  when  made  by  the  payee  without  the  consent  of  the  maker,  the 
note  is  no  longer  valid  against  the  latter.  Moore  v.  Hutchinson,  69 
Mo.  429;  Bank  v.  Fricke,  75  Mo.  178;  Aubuchon  v.  McKnight,  i  Mo. 
212;  Wood  V.  Steele,  6  Wallace  (U.  S.)  80.  A  clear  and  comprehen- 
sive statement  of  the  law  on  this  subject  is  contained  in  the  following 
language  of  Justice  Swayne:  "It  is  now  settled  in  both  English  and 
American  Jurisprudence,  that  a  material  alteration  in  any  commercial 
paper,  without  the  consent  of  the  party  sought  to  be  charged,  extin- 
guishes his  liability.  The  materiality  of  the  alteration  is  to  be  decided 
by  the  court.    The  question  of  fact  is  for  the  jury.    The  alteration  of 


Alterations  563 

the  date,  whether  It  hasten  or  delay  the  time  of  payment,  has  been  uni- 
formly held  to  be  material." 

Since  the  rule  is  that  material  alterations  of  notes  and  bills  annul 
the  obligations  against  unconsenting  parties,  it  follows  that  their  lia- 
bility can  only  be  restored  by  a  new  agreement  with  them.  In  other 
words,  being  released  from  the  paper  by  one  alteration  thereof,  they 
can  not  be  rebound  by  another,  made  without  their  knowledge  or  con  • 
sent.     The  point  under  review  is  therefore  ruled  against  appellant. 

It  is,  however,  urged  that  the  changes  of  the  date  of  the  note  in 
question  were  not  alterations,  but  mere  spoliations,  and  do  not  there- 
fore prevent  a  recovery  on  the  original  contract.  A  material  change  in 
a  bill  or  note  made  by  a  person  interested  therein,  is  an  alteration. 
Changes  in  such  instruments  by  strangers  or  persons  having  no  bene- 
ficial interest  therein,  are  spoliations.  Spoliations  do  not  annul  the 
rights  and  obligations  of  the  parties  to  the  contract.  State  v.  McGon- 
igle,  loi  Mo.  366,  367.  In  the  case  at  bar  the  plaintiff  administrator 
either  had  no  right  to  take  the  note,  or  he  had  the  right  to  fix  its  date, 
amount,  rate  of  interest  and  other  essential  elements.  He  did  take  the 
note  payable  to  himself,  and  brings  this  action  to  collect  it.  As  payee 
and  party  to  the  note  and  plaintiff  in  a  suit  to  enforce  it,  he  is  con- 
cluded from  averring  a  want  of  interest  in  its  proceeds.  A  party 
with  whom  a  contract  is  made  and  who  seeks  to  enforce  its  obligations, 
can  not  in  such  proceeding  aver  his  want  of  interest  in  the  contract 
or  its  subject  matter.  The  administrator  of  a  decedent  is  the  title 
holder  of  the  personal  assets  of  the  estate  for  the  purposes  of  admin- 
istration, and  has  a  pecuniary  interest  in  them  for  the  commission  al- 
lowed him  by  law.  The  plaintiff  in  this  case  was  not  a  stranger  to  the 
note,  and  the  first  change  made  by  him  in  its  date  was  a  material  al- 
teration, not  a  spoliation,  which  avoided  the  instrument  against  the 
maker.  The  judgment  in  this  case  is  affirmed.  Judge  Biggs  concurs; 
Judge  Bland  not  sitting. 


GREEN  v.  SNEED. 
loi  Ala.  205.     (1892) 


John  H.  Sneed  sued  Andrew  H.  Green  in  detinue  for  the  possession 
of  certain  personal  property,  to  which  he  claimed  title  under  and  by 
virtue  of  a  mortgage  executed  by  the  defendant,  the  law  day  of  which 


564  Cases  on  Evidence; 

had  passed.  The  defendant's  testimony  showed  that  the  plaintiff  had 
filled  a  blank  in  the  mortgage  by  inserting  a  larger  amount  than  that 
agreed  on  by  th6  parties  and  contemplated  by  the  defendant  when  he 
authorized  the  plaintiff  to  fill  in  the  blank.  On  the  trial  of  the  cause 
there  w-as  a  verdict  for  the  defendant;  but  on  motion  of  the  plaintiff 
for  a  new  trial,  the  court  set  aside  the  judgment,  and  granted  a  new 
trial,  on  the  ground  that  the  verdict  was  contrary  to  the  evidence.  To 
the  ruling  of  the  court  annulling  the  judgment  and  granting  a  new 
trial  the  defendant  duly  excepted,  and  now  brings  this  appeal,  and 
assigns  such  ruling  as  error. 

McClELLAn,  J.  The  evidence  is  free  from  conflict  that  Sneed  was 
authorized  to  fill  the  blank  left  in  the  mortgage  executed  by  Green  to 
him,  by  inserting  therein  the  amount  of  the  former's  debt  against  the 
latter,  after  deducting  therefrom  the  proceeds  of  certain  two  bales  of 
cotton,  and  adding  thereto  the  costs  of  a  former  suit  between  the  par- 
ties. There  is  conflict  in  the  testimony  as  to  whether  the  mortgagee 
also  had  authority  to  add  to  the  debt  costs  and  attorney's  fees  incurred 
by  him  in  the  former  suit,  and  insert  the  aggregate  of  all  these  items 
in  the  blank  space  left  in  the  instrument.  For  the  purposes  of  this 
appeal,  however,  it  will  be  conceded  that  the  mortgagee  was  author- 
ized to  include  and  insert  as  a  part  of  the  amount  intended  to  be  se- 
cured the  sum  paid  his  attorney  for  services  in  the  previous  litigation. 
A  satisfying  preponderance  of  the  evidence  fixes  the  amount  of  the 
debt  balance  at  one  hundred  and  twenty-five  dollars  ($125).  It  was 
shown  without  conflict  that  the  attorney's  fee  in  question  was  $i8, 
and  the  costs  of  the  former  suit  amounted  to  $8.65.  The  total  of  these 
sums  is  one  hundred,  fifty-one  dollars  and  sixty-five  cents.  The  bal- 
ance of  the  debt  which  the  mortgagee  claimed  to  be  due  was  $138.24. 
Adding  to  this  the  attorney's  fee  and  court  costs,  the  total  is  $164.89. 
No  phase  or  tendency  of  the  evidence  shows  a  greater  total  than  this, 
and  this  sum,  $164.89,  on  the  aspects  of  the  testimony  most  favorable 
to  the  plaintiff,  marks  the  extremest  limit  of  the  amount  he  was  author- 
ized to  insert  in  the  instrument.  The  amount  actually  inserted  by  or 
for  him  was  $167.10;  $2.21  in  excess  of  his  authority,  if  the  evidence 
in  his  own  behalf  is  to  be  taken  as  true,  and  $15.45  in  excess  of  the 
amount  which,  according  to  a  preponderance  of  the  testimony,  he  was 
authorized  to  insert  in  the  blank. 

The  general  proposition  that  any  material  alteration  of  an  instru- 
ment after  its  execution,  without  the  maker's  consent,  avoids  it  and 
discharges  him  from  all  obligation  depending  upon  it  is  not  contro- 
verted in  this  case.     Montgomery  v.  Crossthwait,  90  Ala.  334,  6  So. 


Alth:rations  565 

Rep.  82.  Nor  can  it  be  doubted  in  principle  or  upon  authority  that  a 
material  and,  as  between  the  original  parties  to  the  instrument,  a  vitia- 
tion alteration  may  consist  in  the  filling  of  a  blank,  which  the  promisee 
is  authorized  to  fill  in  a  certain  way,  by  the  insertion  therein  of  matter 
not  covered  by  the  authorization,  i  Am.  &  Eng.  Encyc.  of  Law  518; 
Toomer  v.  Rutland,  57  Ala.  379.  And  as  any  change  of  the  amount 
intended  to  be  evidenced  by  a  writing,  whereby  it  becomes  nominally 
a  promise  to  pay  either  a  greater  or  less  sum  than  that  originally  ex- 
pressed is  a  material,  and,  therefore,  vitiating  alteration  ( i  Am.  &  Eng. 
Encyc.  of  Law,  508),  so,  in  principle,  where  the  amount  is  left  blank 
and  the  promisee  is  authorized  to  insert  a  given  sum,  or  the  true  ag- 
gregate of  several  specified  items,  the  respective  amounts  of  which  are 
fixed  but  not  at  the  time  known  to  the  parties,  and  he  inserts  a  differ- 
ent amount,  as  here,  in  excess  of  the  true  aggregate  of  all  the  items 
intended  to  be  embraced,  and  the  like  vitiation  consequences  must 
ensue. 

The  court  below  confined  the  application  of  these  principles  to 
cases  in  which  the  alteration  is  made  with  a  fraudulent  intent,  and, 
finding  no  such  intent  to  have  actuated  the  plaintiff  in  this  instance, 
held  that  the  mortgage  was  a  valid  security  for  the  amount  really  due, 
notwithstanding  a  different  and  excessive  amount  had  been  inserted  in 
it.  The  distinction  is  not  well  taken.  The  question  of  intent  is  not 
involved.  As  is  well  said  by  counsel :  "The  motive  with  which  the 
change  is  made,  or  the  unauthorized  filling  of  the  blank  is  done,  is  not 
material.  It  is  not  because  the  thing  done  is  actual  fraud,  but  because 
a  contrary  rule  would  open  too  great  a  door  for  fraud,"  and  because, 
we  may  add,  that  the  alteration  changes  the  legal  identity  of  the  paper 
and  causes  it  to  speak  a  language  differing  in  legal  effect  from  that 
which  it  originally  spoke,  a  result  which  would  ensue  however  pure 
the  intent  with  which  the  alteration  was  made,  that  the  law  holds  the 
instrument,  as  between  the  original  parties  and  those  nominally  ac- 
quiring rights  under  it  with  notice  of  the  alteration,  to  be  null  and  void 
for  all  purposes,  i  Am.  &  Eng.  Encyc.  of  Law,  518,  520;  Glover  v. 
Robbins,  49  Ala.  219;  Toomer  v.  Rutland,  57  Ala.  379;  Montgomery 
V.  Crossthwait,  90  Ala.  573. 

Where  the  alteration  or  unauthorized  filling  of  blanks  is  free  from 
all  covinous  intent,  the  result  of  an  honest  mistake  or  miscalculation, 
it  may  be  that  the  promisee  can  recover  on  the  original  consideration : 
he  certainly  could  not  do  even  this  if  he  made  or  consented  to  the 
change  for  any  fraudulent  purposes — i  Am.  &  Eng.  Encyc.  of  Law, 
526;  White  V.  Haas,  32  Ala.  430 — but  here  the  action  is  not  on  the 


566  Cases  on  Evidencis 

original  consideration  for  which  the  mortgage  was  executed,  but  the 
right  of  recovery,  the  title  asserted  by  the  plaintiff  in  this  action  of 
detinue,  depends  upon  the  validity  of  the  paper  itself,  which  in  legal 
contemplation  ceased  to  be  the  instrument  which  the  defendant  exe- 
cuted the  moment  it  was  altered  as  shown  by  the  uncontroverted  evi- 
dence, and  its  emasculation  is  none  the  less  complete  because  of  the 
absence  of  evil  intent  on  the  part  of  the  plaintiff  in  committing  the  act 
which  destroyed  it. 

The  evidence  not  only  authorized  the  jury  to  find  for  the  defendant, 
but  it  showed,  without  conflict  or  room  for  adverse  inference,  that  the 
muniment  of  title  upon  which  the  plaintiff  relied  for  recovery  was 
utterly  infirm  and  invalid,  and  hence  the  jury  could  not  have  found 
other  than  they  did  under  the  law  of  the  case. 

It  is  clear  that  the  trial  court  erred  in  setting  aside  the  verdict  and 
granting  a  new  trial.  The  judgment  to  that  effect  is  reversed  and  an- 
nulled, the  motion  for  new  trial  is  overruled  and  denied,  and  the  ver- 
dict and  judgment  for  defendant  as  returned  and  rendered  in  the  court 
below  is  left  in  full  force. 

/  Reversed  and  remanded. 


ANNA  AMES  v.  ANNA  M.  BROWN  &  HUSBAND. 
22  Minn.  ^57.     (1S75) 

Plaintiff  brought  this  action  in  June,  1874,  in  the  Court  of  Common 
Pleas  of  Hennepin  County,  praying  that  a  certain  mortgage  from  her- 
self to  one  Spencer,  together  with  the  sheriff's  certificate  of  sale  to 
Spencer,  on  foreclosure  of  the  mortgage,  and  the  assignment  of  such 
certificate  from  Spencer  to  the  defendant,  Anna  Maria  Brown,  might 
be  adjudged  null  and  void,  that  the  sale  be  set  aside,  and  the  mort- 
gage, certificate  and  assignment  might  be  cancelled  of  record  as  a  cloud 
upon  her  title.  The  ground  on  which  this  relief  was  asked  was  that 
the  number  of  the  section  in  the  description  pf  premises  contained  in 
the  mortgage  was  inserted  after  it  had  been  executed  and  delivered 
by  plaintiff. 

Cornell,  J.  The  modern  rule  is  well  settled  that  an  alteration  of  a 
deed  or  written  instrument,  even  though  in  a  material  part,  by  a  mere 
stranger,  without  the  privity,  knowledge,  or  consent  of  the  party  in- 
terested, will  not  render  it  void.    Waring  v.  Smyth,  2  Barb.  Ch.  119, 


Alterations  567 

and  note.  In  this  case  no  privity  existed  between  Spencer,  the  mort- 
gagee, and  S.  C.  Gale,  who  made  the  alteration  for  the  sole  purpose  of 
conforming  the  mortgage  to  the  intention  of  the  parties,  and  to  cor- 
rect a  mistake  which  he,  as  the  scrivener  of  the  mortgagor,  had  com- 
mitted in  drawing  it,  and  which  he  innocently  supposed  he  had  the  right 
to  do.  I  Greenl.  Ev.  sec.  189.  That  such  alteration  was  never  made 
by  the  procurement,  consent,  or  knowledge  of  Spencer  is  fully  estab- 
lished as  a  fact  by  the  finding  of  the  court.  Hence  what,  in  the  ab- 
sence of  such  finding,  would  be  the  presumption  growing  out  of  the 
relation  of  principal  and  agent  between  Spencer  and  Gale  &  Co.,  of 
which  firm  S.  C.  Gale  was  a  member,  is  a  matter  of  no  importance. 
But  the  special  character  of  the  agency  of  Gale  &  Co.  gave  them  no 
authority  to  tamper  with  the  security  of  their  principal,  or  to  destroy 
it,  much  less  could  any  such  authority  be  claimed  in  favor  of  any  in- 
dividual member  of  the  firm.  Their  custody  of  the  paper,  for  a  spe- 
cific purpose,  cannot  be  deemed  such  a  possession  by  the  principal  as 
would  charge  him  with  any  knowledge  of,  and  presumed  assent  to, 
their  unauthorized  and  illegal  acts,  and  make  him  responsible  for  their 
consequences.  U.  S.  v.  Hatch,  i  Paine  (C.  Ct.),  336.  It  follows  that 
S.  C.  Gale  must  be  regarded  as  a  stranger,  whose  unauthorized  act  in 
altering  the  mortgage  in  no  way  aifected  the  legal  or  equitable  rights 
of  the  mortgagee  or  his  assignees. 

Judgment  affirmed. 


FULLER  V.  GREEN. 
64  Wis.  159.     (1885) 


This  action  was  commenced  to  recover  the  amount  of  a  promissory 
note  given  by  the  respondent  to  one  George  H.  Rice.  The  note  had 
been  transferred  by  Rice  to  one  A.  J.  Woodward,  in  whose  name  the 
action  was  originally  commenced.  Woodward  died  after  the  action 
was  commenced,  and  the  present  appellants,  his  executors,  were  sub- 
stituted as  plaintiflFs. 

There  was  no  dispute  as  to  the  fact  that  the  defendant  executed  the 
note  and  delivered  it  to  Rice.  On  the  trial  in  the  court  below  two  de- 
fenses were  relied  upon  to  defeat  the  action:  (i)  That  after  the  note 
had  been  delivered  by  the  defendant  to  Rice,  it  had  been  altered  with- 
out his  knowledge  or  consent  by  adding  thereto  the  name  of  N.  Fred- 


568  Cases  on  Evidence 

ericks  as  an  attesting  witness  to  the  note;  and,  (2)  that  the  note  was 
fraudulently  obtained  from  the  defendant  without  any  consideration 
therefor. 

Upon  the  first  point  the  evidence  tended  strongly  to  show  that 
when  the  note  was  executed  and  delivered  by  the  defendant  to  Rice, 
N.  Fredericks'  name  was  not  placed  on  the  same  as  an  attesting  wit- 
ness, but  that  he  was  present  when  the  note  was  made  and  delivered 
by  the  defendant  to  Rice.  When  the  note  was  produced  in  evidence. 
Fredericks'  name  was  written  thereon  as  an  attesting  witness ;  when 
it  was  placed  there  does  not  appear.  The  proof  shows  that  it  was  done 
without  the  knowledge  or  consent  of  the  defendant. 

Upon  the  first  point,  as  to  the  alteration  of  the  note,  the  learned 
circuit  judge  instructed  the  jury  as  follows : 

"It  is  claimed  by  the  defendant  that  the  note  in  suit  has  been  altered 
since  it  was  made  and  executed  by  the  defendant,  by  one  N.  Fred- 
ericks affixing  his  name  as  a  witness  to  the  same  without  the  consent 
or  knowledge  of  the  defendant,  and  that  the  note  in  consequence  is 
void. 

"Upon  this  point  I  instruct  you  that,  if  you  find  and  believe  from 
the  evidence  that  George  H.  Rice,  the  payee  of  this  note,  or  any  other 
holder  of  the  same,  jdid,  without  the  knowledge,  consent,  or  request 
of  the  defendant,  fraudulently,  and  with  a  view  to  gain  some  improper 
advantage,  procure  Mr,  N.  Fredericks  to  affix  his  name  to  the  note 
in  question  as  a  subscribing  witness  to  the  same  after  the  same  was 
made,  executed,  and  delivered  to  Rice  by  the  defendant,  then  the  af- 
fixing of  such  name  of  Fredericks  to  the  note,  under  the  circumstances, 
constitutes  a  material  alteration  of  the  same — rendering  it  void  in 
Rice's  hands,  as  well  as  in  the  hands  of  the  plaintiff,  and  your  verdict 
must  be  for  the  defendant." 

Taylor,  J,  The  old  rule  of  law  in  England  that  any  alteration, 
whether  material  or  immaterial,  and  whether  made  by  a  party  inter- 
ested in  the  contract  or  by  a  stranger,  rendered  the  contract  void,  was 
long  since  abandoned;  and  the  reasonable  rule  has  now  become  firmly 
established  that  an  alteration  of  a  contract  which  will  render  it  void 
must  be  made  by  a  party  thereto  or  with  his  knowledge  or  consent; 
and,  further,  the  alteration  must  be  material;  that  is,  the  alteration 
must  in  some  way  change  the  legal  effect  thereof  as  between  the 
parties  thereto.  The  insertion  or  addition  of  words  in  or  to  a  con- 
tract, or  the  erasing  of  words  therefrom,  which  do  not  change  the 
legal  effect  thereof  in  any  respect,  does  not  render  the  contract  void, 
and   is   an  immaterial  alteration.     Williams   v.   Starr,   5   Wis.    534; 


AI.TERATIONS  5^ 

Schwalm  v.  Mclntyre,  17  Wis.  240;  Matteson  v.  Ellsworth,  33  Wis. 
488;  North  V.  Henneberry,  44  Wis.  306;  Krouskop  v.  Shontz,  51  Wis. 
204,  206 ;  Palmer  v.  Largent,  5  Neb.  223 ;  Aldous  v.  Cornwall,  9  Best 
&  S.  607;  Marson  v.  Petit,  i  Camp.  82;  Trapp  v.  Spearman,  3  Esp. 
57;  Sanderson  v.  Symonds,  i  Brod.  &  B.  426;  S.  C,  4  Moore  42; 
Catton  V.  Simpson,  8  Ad.  &  El.  136;  Gardner  v.  Walsh,  5  El.  &  Bl. 
83;  Truett  V.  Wainwright,  4  Gilman  411;  2  Parsons  on  Cont.  (6th 
ed.)  718-720;  Granite  R.  Co.  v.  Bacon,  15  Pick.  239;  Langdon  v 
Paul,  20  Vt.  217;  Huntington  v.  Finch,  3  Ohio  St.  445;  Nichols  v. 
Johnson,  10  Conn.  192;  Humphreys  v.  Crane,  5  Cal.  173. 

The  .affixing  of  the  name  of  Fredericks  as  an  attesting  witness  to 
the  note  in  question  does  not  change  the  liability  of  the  maker  thereof 
in  any  respect.  It  has  no  effect  in  extending  his  liability  under  the 
statute  of  limitations,  nor  does  it  under  our  laws  facilitate  or  inter- 
fere in  any  way  with  its  proof.  Under  our  law  the  production  of  the 
note  proves  its  execution,  unless  the  signature  be  first  denied  under 
oath  by  the  maker.  When  there  is  no  dispute  as  to  the  genuineness 
of  the  maker's  signature,  and  therefore  no  necessity  for  the  person 
claiming  under  it  making  proof  of  its  execution,  the  fact  that  the 
note  has  or  has  not  an  attesting  witness  is  wholly  immaterial. 

If  the  alteration  be  wholly  immaterial,  and  in  no  way  changes  the 
liability  of  the  maker  of  the  note,  it  seems  to  us  wholly  immaterial 
with  what  intent  such  alteration  was  in  fact  made. 

By  the  Court.  The  judgment  of  the  Circuit  Court  is  reversed 
and  the  cause  remanded  for  a  new  trial. 


FISHER  V.  KING. 
133  Pa.  St.  3.     (1893) 


Dean,  J.  On  January  18,  1890,  judgment  was  entered  in  this 
case  on  a  single  bill,  dated  July  i,  1889,  with  warrant  of  attorney 
in  the  sum  of  seven  hundred  and  fifty  dollars  ($750),  payable  two 
years  after  date  with  interest  at  five  per  cent.  The  obligor  is  Henry 
King,  this  appellant;  the  obligee  Frederick  Fisher,  appellee  who  as- 
signed the  judgment  to  Bromley  &  Burns  as  collateral  security  for 
a  loan  of  two  hundred  and  twenty-five  dollars  ($225). 

As  to  the  second  averment,  that  there  was  a  material  alteration 
of  the  instrument  after  delivery,  the  evidence  shows'  only  the  parties 


570  Cases  on  Evidence 

to  it  were  present  when  it  was  sealed  and  delivered  by  King  to  Fisher; 
Fisher  then  left  the  house  with  the  bill  and  called  upon  Robert  T. 
King,  brother  of  defendant,  who  wrote  his  name  in  the  place  where 
should  appear  the  name  of  a  witness.  If  this  was  willfully  done, 
with  the  knowledge  and  consent  of  Fisher,  even  though  no  additional 
liability  was  thereby  imposed  on  the  obligor,  it  avoided  the  instru- 
ment. The  application  of  this  rule  does  not,  in  case  of  willful 
alteration,  depend  on  the  injury  done  in  the  particular  case,  but 
as  is  said  in  Neflf  v.  Horner,  63  Pa.  330,  its  true  ground  is  public 
policy,  to  insure  the  protection  of  instruments  against  fraud  and 
substitution.  And  it  has  been  held  to  be  a  material  alteration  to 
cause  the  name  of  a  person  to  be  placed  on  a  note  as  a  witness  who 
was  in  no  respect  a  witness  to  any  part  of  the  transaction.  Homer 
V.  Wallis,  II  Mass.  312.  If  there  be  a  material  alteration  by  the 
payee,  after  delivery,  willfully,  however  innocent  the  intention,  or 
however  slight  the  prejudice  to  the  maker,  the  instrument  is  avoided. 
If  there  was  no  willful  alteration,  there  is  no  reason  for  enforcing 
the  rule,  that  the  alteration  shall  avoid  the  instrument.  The  pur- 
pose of  the  rule  is  to  take  away  the  motive  for  alteration  by  a  for- 
feiture, a  penalty,  which  punishes  the  offender  and  deters  others. 
But  to  inflict  such  a  severe  penalty  for  the  blunder  of  an  ignorant 
man  accomplishes  not  the  purpose  of  the  law ;  no  guilt  is  reached,  for 
none  exists;  other  blunders  are  not  deterred,  for  a  forfeiture  does 
not  dispel  ignorance.  We  are,  therefore,  of  the  opinion  that  under 
the  facts  of  this  case  the  law  does  not  call  for  a  forfeiture  of  the 
obligation. 


GLEASON  v.  HAMILTON. 
138  N.  Y.  353.     (1893) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  May 
13,  1892,  which  affirmed  a  judgment  in  favor  of  plaintiff,  entered 
upon  a  decision  of  the  court  on  trial  at  Special  Term,  and  affirmed 
an  order  denying  a  motion  for  a  new  trial. 

This  was  an  action  for  the  foreclosure  of  a  mortgage  executed 
by  defendant  to -plaintiff. 

Peckham,  J.    We  ought  not  to  reverse  it  and  send  the  case  back 


Ai,te;rations  571 

for  a  new  trial  when  there  is  sufficient  evidence,  wholly  uncon- 
tradicted and  perfectly  credible,  to  prove  beyond  any  doubt  that 
the  plaintiff  ought  to  recover.  The  plaintiff  was  wholly  ignorant 
of  the  alteration  attempted  to  be  made  in  the  mortgage  and  so  re- 
mained until  after  the  commencement  of  this  action.  The  action  it- 
self is  brought  to  foreclose  the  mortgage  for  non-payment  of  paper 
which  confessedly  it  was  originally  given  to  secure.  The  attorney, 
who  wrote  in  the  addition  to  the  mortgage  as  it  originally  was  exe- 
cuted, had  no  power  as  agent  of  the  plaintiff  to  make  any  alteration 
in  the  instrument  by  which  its  validity  should  be  avoided.  While 
the  high  character  of  the  attorney  who  directed  the  addition  might 
render  it  entirely  plain  that  there  was  no  intention  of  making  any 
fraudulent  alteration,  and  while  the  evidence  seems  to  pretty  clearly 
show  there  was  not  in  fact  the  slightest  wrongful  intent  in  directing 
the  alteration,  and  that  it  was  done  for  the  purpose  of  thereafter 
securing  the  assent  of  the  defendant  to  the  alteration,  yet  no  such 
assent  was  secured  and  this  act  of  the  attorney  for  the  plaintiff  can- 
not properly,  as  we  think,  operate  as  if  it  had  been  an  alteration 
made  in  a  material  part  of  the  mortgage  by  the  plaintiff  himself, 
or  by  his  attorney  or  agent  with  his  knowledge  or  by  his  authority 
expressed  or  implied. 

The  act  of  the  attorney  did  not  and  ought  not  to  bind  the  plaintiff 
in  this  case. 

Many  cases  have  arisen  since  the  decision  of  Pigot's  Case  (11  Coke 
47),  where  it  was  held  that  a  material  alteration  made  by  a  stranger 
to  a  deed,  and  without  the  privity  of  the  obligee,  did,  nevertheless, 
invahdate  the  instrument.  As  late  as  the  years  1843,  ^"^  1844,  this 
decision  was  treated  with  respect  by  the  English  courts.  (Davidson 
V.  Cooper,  11  M.  &  W.  778,  798;  S.  C.  in  Exchequer  Chamber,  13  id. 
342.) 

But  there  has  been  since  that  period  a  departure  from  this  rule 
even  in  England  (see  Aldrous  v.  Cornwell,  3  Q.  B.  (L.  R.)  573,  A.  D. 
1868)  while  in  our  state  the  cases  referred  to  in  the  opinion  delivered 
in  the  General  Term  in  this  case,  and  those  cited  in  the  briefs  of 
counsel  before  this  court,  show  that  when  an  alteration  is  not  made 
by  a  party  to  the  instrument  and  in  a  material  matter,  the  altera- 
tion is  of  no  effect  and  the  original  validity  of  the  instrument  re- 
mains. (Casoni  v.  Jerome,  58  N.  Y.  315,  321,;  Smith  v.  Kidd,  68  id. 
130,  141;  Martin  v.  Ins.  Co.,  loi  id.  498;  Town  of  Solon  v.  Bank, 
114  id.    134.) 


572  Cases  on  Evidence; 

In  Vermont  the  same  rule  obtains.     (Bigelow  v.  Stilphen,  35  Vt. 

521.) 

See,  also,  in  other  states.  (Robertson  v.  Hay,  91  Penn.  St.  242; 
Hunt  V.  Gray,  35  N.  J.  Law  227;  Nickerson  v.  Sweet,  135  Mass.  514; 
Brooks  V.  Allen,  62  Ind,  401.) 

Upon  the  ground  that  the  plaintiff  was  not  in  any  manner  re- 
sponsible for  the  attempt,  unknown  to  him,  to  enlarge  the  liability 
of  the  mortgagor  by  the  proposed  alteration,  and  because  the  plaintiff 
seeks  only  to  enforce  the  mortgage  as  it  was  originally  executed,  we 
affirm  the  judgment  appealed  from. 

All  concur,  except  Andrews,  Ch.  J.,  not  voting. 

Judgment  affirmed. 


DAVIS,  STEELE  &  CO.  v.  EPPLER  ct  al. 
38  Kan.  62p.     (1888) 

Action  to  recover  upon  a  promissory  note. 

Holt,  C.  The  most  serious  question  in  this  case  is,  whether  the 
writing  of  the  words  "Waive  notice  and  protest"  on  the  back  of 
the  note  before  maturity,  over  the  names  of  Farrell  and  Eppler,  was 
such  an  alteration  as  to  relieve  the  defendant  Eppler  of  his  liabil- 
ity as  indorser.  It  is  proven  that  Eppler  never  consented  to  such 
addition ;  on  the  other  hand,  it  is  also  well  established  by  the  evi- 
dence that  such  writing  was  not  made  with  the  intention  of  creating 
any  greater  liability  on  the  part  of  Eppler  and  it  is  beyond  question 
that  the  indorsement  was  a  substantial  change  in  the  contract  between 
Eppler  and  plaintiffs;  it  changed  his  contingent  liability  to  an  abso- 
lute one.  (Dan.  Neg.  Ins.,  sec.  1390;  Farmer  v.  Rand,  14  Me.  225; 
Andrews,  Adm'x  v.  Sims,  Adm'r,  33  Ark.  771.^ 

We  believe  it  would  be  a  dangerous  rule  to  allow  written  con- 
tracts, more  especially  negotiable  paper,  to  be  altered  without  the 
consent  of  the  maker,  or  the  parties  who  are  bound  by  the  indorse- 
ment. It  is  intended  that  such  instrument  shall  pass  into  the  hands  of 
those  who  may  become  interested  in  them,  without  addition  or  altera- 
tion, and  without  the  fear  that  they  may  have  been  altered.  The  facili- 
ties for  making  alterations  are  numerous,  and  the  difficulty  of  prov- 
ing them  great;  all  means  should  be  employed  to  impress  a  sense  of 


Alterations  573 

their  inviolability  upon  the  minds  of  those  who  have  them  in  their 
possession. 

It  is  the  policy  of  the  law  to  allow  no  tampering  with  written 
instruments.  The  holder  of  a  note  has  no  right  to  alter  it  M'ithout 
the  consent  of  all  the  parties  interested,  and  such  unwarranted  al- 
teration should  make  it  null  in  his  hands,  no  matter  how  pure  his 
motives  may  have  been  in  making  the  alteration.  (Bank  of  Spring- 
field V.  Fricke,  75  Mo.  178;  Moore  v.  Hutchinson,  69  id.  429;  Neff 
V.  Horner,  63  Pa.  St.  327;  Fraker  v.  Cullum,  21  Kan.  556;  Horn  v. 
Xewton  City  Bank,  32  id.  518.) 

For  the  reasons  given  herein,  we  recommend  that  the  judgment  of 
the  court  below  be  affirmed. 

By  the  court  it  is  so  ordered. 

All  the  Justices  concurring. 


CROSWELL  V.  LABREE. 
81  Me.  44.     (1888) 


This  was  an  action  on  a  promissory  note,  of  which  the  following 
is  a  copy: 
"$85.00  Monson,  Aug.  8th,  1883. 

One  year  after  date  I  promise  to  pay  to  the  order  of  J.  G.  Timber- 
lake  or  bearer  Eighty-five  no-ioo  dollars  at  my  house  with  interest, 
value  received. 

I,  D.  Labree." 

The  note  was  written  by  filling  out  a  printed  blank.  The  defense 
was  that  the  words  "or  bearer"  had  been  written  in  after  the  note 
had  been  completed,  signed  and  delivered  by  the  maker,  and  without 
his  knowledge  or  consent.  The  presiding  justice  instructed  the  jury, 
that,  "to  constitute  a  defense  by  this  alleged  alteration,  you  must 
be  satisfied  that  the  words  'or  bearer'  were  written  in  by  some  per- 
son after  the  note  was  made  and  delivered,  for  a  fraudulent  pur- 
pose, with  an  improper  motive,  for  the  purpose  of  changing  the  char- 
acter of  the  contract  and  changing  the  obligation  of  the  maker; 
because  if  the  words  were  written  in  by  mistake,  without  the  improper 
motive,  without  the  fraudulent  intent,  they  may  be  disregarded,  and 
they  would  not  affect  the  contract  at  all." 

Peters,  C.  J.     The  note  in  controversy  contains  the  promise  of 


574  Cases  on  Evidence 

the  defendant  to  pay,  "to  the  order  of"  J.  G.  Timberlake  "or  bearer," 
a  sum  of  money,  and  was  indorsed  by  the  payee  to  the  plaintiff. 
The  defense  at  the  trial  was  an  alleged  unauthorized  alteration  of 
the  note  by  inserting  it  in  the  words  "or  bearer." 

The  Judge  at  the  trial  ruled  that,  if  the  alteration,  though  unau- 
thorized, was  made  innocently,  without  any  fraudulent  or  improper 
motive,  it  would  not  avoid  the  note.  That  was  correct  and  is  well 
borne  out  by  the  principle  established  in  Milbery  v.  Storer,  75  Me. 

69. 

The  further  instruction  was  given  that  the  burden  of  proof  was 
on  the  defendant  (the  maker)  to  satisfy  the  jury  that  the  note  was 
improperly  altered.  We  are  of  opinion  that  this  instruction  was 
not  correct.  The  act  of  alteration  was  apparently  fraudulent.  A 
wrongful  act  naturally  indicates  a  wrongful  intent,  and  requires  ex- 
planation to  excuse  it.  The  holder  of  a  note  must  show  that  an 
alteration  proved  or  admitted  was  made  innocently.  Otherwise  it 
would  follow  that,  in  the  case  of  the  most  glaring  forgeries  by  altera- 
tion of  negotiable  paper,  the  party  sought  to  be  charged  thereon 
must  explain  the  motive  of  the  forger.  In  the  case  cited  it  is  de- 
clared that  alteration  is  prima  facie  evidence  of  fraudulent  intent,  but 
that  it  may  be  rebutted  and  disproved. 

The  alteration  in  the  present  instance  was  a  material  one.  It  under- 
took to  foist  a  contract  on  the  maker  not  made  by  him.  It  changed 
the  obligation  as  an  instrument  of  evidence.  Chadwick  v.  Eastman, 
53  Mo.  12;  Hewins  v.  Cargill,  67  Me.  554.  It  is  held  in  Dodge  v. 
Haskell,  69  Me.  429,  that  the  burden  is  on  the  plaintiff  to  explain 
any  apparent  material  alteration  of  a  note,  so  far  as  it  does  not  suffi- 
ciently explain  itself  to  the  minds  of  the  jury. 

Exceptions  sustained. 


SEWING  MACHINE  CO.  v.  DAKIN. 

86  Mich.  581.     (i8pi) 

Champlin,  C.  J.  This  is  an  action  on  a  bond  given  by  Milo  H. 
Dakin  as  principal,  and  Aaron  T.  Bliss  and  Anthony  Byrne  as  sure- 
ties, to  the  plaintiff,  to  secure  any  indebtedness  incurred  by  Dakin  to 
the  plaintiff  while  acting  as  its  agent  in  selling  sewing-machines. 


Alterations  575 

The  only  questions  presented  by  the  record  are: 

1.  Was  the  insertion  of  the  words  "attorney's  fees"  a  material 
alteration,  if  inserted  after  the  bond  was  executed? 

2.  If  inserted  by  Van  Ness  after  it  was  executed,  and  before 
it  was  forwarded  by  him  to  the  plaintiff  for  acceptance  or  rejection, 
did  it  render  the  bond  invalid  in  the  hands  of  the  plaintiff? 

Clearly  the  alteration  by  the  insertion  of  the  words  "attorney's 
fees"  was  immaterial.  An  alteration,  to  be  material,  must  be  in  a 
material  part  of  the  instrument,  and  affect  the  rights  and  liabilities 
of  the  parties  thereto,     i  Amer.  &  Eng.  Cyc.  Law,  505, 

The  penalty  of  this  bond  is  $1,000,  no  more  and  no  less;  and 
no  recovery  can  exceed  that  amount.  Bishop  v.  Freeman,  42  Mich. 
533;  Odd  Fellows  v.  Morrison,  id.  523;  Spencer  v.  Perry,  18  id. 
394.  The  damages  including  the  interest,  where  it  is  proper  to  allow 
it  to  be  assessed  under  the  conditions,  cannot  exceed  the  penalty;  and 
if  they  equal  the  penalty,  they  can  only  draw  interest  from  the  date 
of  judgment.  In  this  case,  as  in  the  other  cases  under  the  statute, 
the  recovery  and  judgment  would  be  for  the  penalty  of  the  bond, 
and  the  further  judgment  that  the  plaintiff  have  execution  for  the 
damages  assessed.  The  promise  to  pay  ten  per  cent,  attorney's  fees 
is  no  part  of  the  penalty  of  the  bond,  and  by  no  possibility  can  it 
affect  the  judgment  to  be  rendered  upon  the  bond,  nor  the  amount  of 
damages  to  be  assessed. 

Second.  If  any  alteration  was  made  after  the  execution  of  the 
bond,  it  was  done  by  Van  Ness,  and  although  he  was  the  agent  of  the 
plaintiff,  and  received  and  forwarded  the  bond  in  question  to  the 
plaintiff  for  its  approval  or  rejection,  yet  there  is  no  testimony  in 
this  record  tending  to  show  that  he  was  expressly  or  impliedly  author- 
ized to  make  any  alteration  in  the  bond. 

The  rule  of  law  is  that,  when  an  alteration  is  made  by  a  third 
party,  it  is  an  act  of  spoliation,  and  the  alteration,  although  material, 
cannot  invalidate  the  written  instrument;  and  when  the  spoliation 
is  done  by  the  agent  of  one  of  the  parties,  it  will  not  avoid  the 
contract  if  the  agent  had  no  express  or  implied  authority  to  do  it. 
I  Am.  &  Eng.  Cyc.  Law,  505 ;  Van  Brunt  v.  Eoff,  35  Barb.  501 ;  Col- 
lins v.  Makepeace,  13  Ind.  448;  Hunt  v.  Gray,  35  N.  J.  Law,  2.2'j r, 
Bigelow  v.  Stilphen,  35  Vt.  521;  Miller  v.  Reed,  3  Brant,  Cas.  51; 
S.  C,  27  Penn.  St.  244;  Terry  v.  Hazlewood,  i  Duv.  104.  The 
declaration  counts  upon  the  bond  as  being  in  a  penalty  of  $1,000, 
and  assigns  breaches   of  the  conditions.     It   follows   that  the  bond 


576  Cases  on  Evidence 

would  be  a  valid  instrument  in  the  hands  of  the  plaintiff  for  what 
it  was  before  the  alteration  was  made. 

The  errors  assigned  must  be  overruled,  and  the  judgment  affirmed, 
with  costs  of  both  courts. 


MERRITT  v.  BOYDEN  &  SON. 
ipi  III.  136.     (1901) 

This  is  an  action  of  assumpsit,  brought  by  the  appellees  against 
the  appellant,  Merritt,  and  one  L.  Silverman  on  a  note  made  by  Sil- 
verman and  Merritt,  which  note  was  payable  to  their  own  order  and 
endorsed  by  them  in  blank.  The  declaration  contains  a  special  count 
on  the  note,  and  the  common  counts.  The  following  is  a  copy  of 
the  instrument  sued  upon: 
"$1300.00  Kewanee,  111.  Oct.  4,  1897. 

"One  year  after  date  I  promise  to  pay  to  the  order  of  ourselves 
thirteen  hundred  dollars  at  Kewanee,  111.  Value  received,  with  inter- 
est at  the  rate  of  seven  per  cent  per  annum. 

Endorsed : 
L.  Silverman,  L.  Silverman,    . 

H.  Clay  Merritt.  H.  Clay  Merritt." 

Default  was  entered  against  Silverman.  Merritt  pleaded  the  gen- 
eral issue,  and  denial  of  the  execution  of  the  note  sued  on,  sworn 
to  by  him.  The  jury  rendered  a  verdict  in  favor  of  the  plaintiffs 
for  the  sum  of  $1519.92,  upon  which  judgment  was  entered  on  March 
27,  1900.  An  appeal  from  this  judgment  was  taken  to  the  Appellate 
Court,  and  it  has  there  been  affirmed.  The  present  appeal  is  from 
such  judgment  of  affirmance, 

Magruder,  J,  When  the  note,  sued  upon  in  this  case,  was  signed 
and  endorsed  by  the  appellant,  Merritt,  and  L.  Silverman,  Silverman 
took  the  note,  and  through  his  action  or  that  of  others  acting  for 
him,  the  note  was  sold  and  delivered  to  the  appellees,  Boyden  &  Son. 
The  proof  tends  to  show — and  such  proof  is  substantially  undisputed 
— that  the  appellees  purchased  the  note  in  good  faith  without  notice 
of  any  defect  in  it,  and  paid  therefor  the  sum  of  $1300.00. 

The  defense,  made  by  the  appellant  in  the  trial  court,  was  based 
upon  two  theories:  First,  that  the  words,  "one  hundred"  were  writ- 
ten in  the  bodv  of  the  note  before  the  word  "dollars,"  and  that  the 


Alterations  577 

word  "one,"  was  in  some  way  erased,  or  taken  out  of  the  note,  and 
the  word  "thirteen"  was  written  in  its  place  before  the  word  "hun- 
dred;" second,  that,  when  the  note  was  signed  and  endorsed  by  the 
appellant  the  word  "one,"  was  not  in  the  body  of  the  note,  but  that 
there  was  a  blank  space  before  the  word,  "hundred,"  and  that  in 
this  blank  space  and  before  the  word  "hundred,"  the  word  "thirteen," 
was  written.  Whether  the  note  was  altered  in  the  one  or  the  other 
of  the  modes  thus  stated,  the  proof  tends  to  show,  and  is  substantially 
undisputed  that  the  change  was  not  made  by  the  appellant,  Merritt, 
or  by  any  one  authorized  by  him  to  make  it,  and  that  he  knew  nothing 
about  the  change,  and  had  no  intimation  of  it,  until  about  the  time 
the  note  fell  due. 

First — If  the  note  was  altered  by  the  erasure  of  the  word  "one" 
in  the  body  of  it  and  the  insertion  of  the  word  "thirteen"  in  the 
place  of  the  word  "one"  before  the  word  "hundred,"  then  the  altera- 
tion amounted  to  a  forgery,  and  the  appellant  is  not  liable  upon 
the  note,  even  though  the  appellees  were  bona  fide  purchasers  thereof 
for  value  without  notice  or  knowledge  of  the  change.  If  the  amount 
named  in  a  note  is  raised  by  erasing  what  is  written  such  altera- 
tion is  a  material  one,  and  the  note  is  thereby  vitiated,  so  as  to  be- 
come void.  When  a  note  is  changed  materially  either  by  a  payee 
or  transferee,  not  only  is  it  vitiated  and  destroyed  in  the  hands  of 
the  party  responsible  for  the  alteration,  but  no  recovery  can  be  had 
upon  it  against  the  maker  by  a  person  into  whose  hands  it  has  come 
after  the  change  was  made,  even  though  the  latter  be  a  bona  fide 
endorsee  for  value  without  notice  of  the  alteration.  (2  Am.  &  Eng. 
Encyc.  Law,  2nd  ed.  pp.  193,  255,  257;  3  Randolph  on  Commercial 
Paper,  2nd  ed.  sec,  1754.)  Where  a  note  is  complete  at  the  time  when 
it  is  signed  by  the  maker,  its  subsequent  alteration  by  raising  the 
amount  thereof  through  obliteration  of  the  same  by  the  use  of  any 
chemical  process,  or  other  ingenious  device,  without  the  knowledge 
or  consent  of  the  maker,  will  discharge  him  from  liability  upon  the 
note.  (Burrows  v.  Klunk,  70  Md.  460.)  "When  a  negotiable  instru- 
ment is  materially  altered,  no  recovery  can  be  had  thereon  against 
any  one,  who  became  a  party  thereto  prior  to  the  alteration,  even 
though  he  be  a  bona  fide  holder  without  notice."  (4  Am.  &  Eng. 
Encyc.  of  Law,  2nd  ed.  p.  332;  Angle  v.  Northwestern  Mutual  Life 
Ins.  Co.,  92  U.  W.  340).  In  Burwell  v.  Orr,  84  111.  465,  we  said: 
"The  alteration  of  the  instrument,  on  which  the  suit  was  brought 
was  material,  and,  under  the  circumstances,  must  be  presumed  to 
have  been  made  by  or  with  the  consent  of  the  holder.     If  so,  the 


578  Cases  on  Evidence; 

whole  instrument,  by  the  alteration,  became  ipso  facto  void.  No 
subsequent  indorsement  even  to  a  bona  fide  purchaser  for  value,  could 
give  validity  to  a  void  instrument."  (Pahlman  v.  Taylor,  75  III. 
629.)  The  rule  seems  to  be  well  settled  that,  in  case  of  a  material 
alteration  of  a  note,  it  becomes  invalid  even  in  the  hands  of  a  sub- 
sequent endorsee  for  value.  (Wade  v.  Withington,  i  Allen  561; 
Commonwealth  v.  Emigrant  Industrial  Savings  Bank,  98  Mass.  17.) 
The  trial  court,  in  instructing  the  jury  upon  the  trial  below  an- 
nounced the  law  in  regard  to  the  effect  of  a  material  alteration,  as  it 
is  above  stated. 

Judgtnent  affirmed. 


WILLARD  V.  OSTRANDER. 
31  Kan.  481.     (1893) 

Action  by  Ostrander  against  Willard  for  conversion.  Judgment 
for  plaintiff, 

Allen,  J.  This  action  was  brought  by  the  defendant  in  error, 
as  plaintiff  below,  to  recover  the  value  of  1,500  Merino  sheep  which 
he  alleges  he  owned,  and  the  defendant  took  and  converted  to  his 
own  use.  The  defendant  admitted  the  taking  of  the  sheep,  but  jus- 
tified the  act  as  having  been  done  by  virtue  of  a  chattel  mortgage 
given  by  the  plaintiff  to  him  on  the  2nd  day  of  September,  1885, 
on  the  sheep  in  controversy,  to  secure  the  sum  of  $3,850.50,  accord- 
ing to  the  terms  of  four  promissory  notes.  To  this  answer  the  plain- 
tiff replied,  denying  the  execution  of  the  mortgage  as  set  out  in 
defendant's  answer,  but  admitting  that  he  executed  a  chattel  mort- 
gage on  the  same  sheep,  and  alleging  that  a  material  change  had 
been  made  therein  by  the  defendant  without  the  consent  of  the  plain- 
tiff, by  inserting  the  word  "wool" ;  also  alleging  that  the  sheep  mort- 
gaged were  purchased  from  the  defendant,  and  the  mortgage  given 
to  secure  the  purchase  price;  that  said  sheep  were  warranted  to  be 
sound,  healthy  and  free  from  disease;  that  they  were  in  fact  diseased, 
having  a  contagious  disease  commonly  known  as  "mange,"  "scab," 
or  "itch;"  that  various  damages  had  been  sustained  by  the  plaintiff 
by  reason  of  such  disease;  that  the  consideration  of  such  notes  had 
failed. 

Much  is  said  in  the  briefs,  and  the  point  was  vigorously  pressed  on 


AlvTERATlONS  579 

the  oral  arguments,  as  to  the  materiality  of  the  word  "wool"  in  the 
mortgage.  Plaintiff  in  error  contends  that  a  mortgage  of  the  sheep 
necessarily  covers  their  wool.  The  question  is  not  free  from  diffic)nlty. 
(See  Jones,  Ch.  Mort.,  sees.  149-151,  and  cases  therein  cited;  Bryant 
V.  Penneil,  Gi  Me.  108.)  Without  attempting  to  carefully  review  all 
the  authorities,  we  think,  as  between  the  parties  to  the  action,  a  mort- 
gage on  the  sheep  would  include  the  "wool,"  but  that  after  the  "wool" 
was  clipped,  if  sold  to  a  purchaser  for  value  without  notice,  he  would 
get  a  title  free  from  the  hen'  of  the  mortgage.  If  this  conclusion  be 
correct,  the  insertion  of  the  word  "wool"  would  be  a  material  altera- 
tion. If  the  mortgage  was  in  fact  altered  after  its  execution,  the  al- 
teration must  have  been  by  the  mortgagee,  or  by  his  direction,  to  im- 
pair its  validity;  and  it  will  not  be  presumed  that  an  agent  entrusted 
with  the  possession  of  the  security  was  directed  by  the  mortgagee  to 
make  such  an  alteration,  but  that  fact  must  be  shown  by  proof.  (Lan- 
genberger  v.  Kroeger,  48  Cal.  147;  17  Am.  Rep.  418).  Some  other 
questions  are  urged  on  our  consideration,  but  as  they  are  not  Hkely  to 
arise  on  another  trial,  we  do  not  feel  called  on  to  specially  mention 
them. 

For  the  errors  of  the  court  in  instructing  the  jury,  the  judgment 
must  be  reversed  and  a  new  trial  ordered. 


DERBY  v.  THRALL. 
44  Vt.  413.     (1872) 


Assumpsit  upon  common  counts.    Plea,  the  general  issue. 

Upon  the  trial,  it  appeared  that  one  Wilson  had  arranged  with  the 
plaintiff  for  the  purchase  of  a  rifle,  in  part  payment  for  which  he  was 
to  give  a  note  for  $22,  with  surety,  and  that  Wilson  procured  the  de- 
fendant to  become  such  surety  by  agreeing  that  in  the  purchase  of  the 
rifle  he  should  act  as  the  agent  of  the  defendant,  and  the  rifle  be  the 
property  of  the  defendant  until  the  note  should  be  paid.  That  the 
plaintiff  was  commonly  called  Frank,  when  called  by  given  name. 
That  Wilson  procured  a  note  to  be  drawn,  dated  April  23,  1869,  for 
$22,  payable  in  the  month  of  October,  then  next,  to  Franklin  Derby, 
supposing  that  to  be  the  plaintiff's  name,  and  the  defendant  signed 
the  note  as  surety.  That  Wilson  took  the  note  to  the  plaintiff  and 
the  plaintiff  noticed  that  the  name  of  the  payee  was  Franklin  instead 


580  Cases  on  Evidence 

of  Francis  E.  Derby,  and  that  Wilson  then  consented  that  the  plain- 
tiff might  alter  the  name  of  the  payee  frcwn  Franklin  Derby  to  Fran- 
cis E.  Derby,  and  the  plaintiff  did  so  alter  it  and  took  it  in  payment 
for  the  rifle,  and  that  the  defendant  did  not  know  of  the  alteration. 
The  plaintiff  offered  the  note  in  evidence,  in  connection  with  the  proof 
of  these  facts.  The  defendant  objected.  The  court  overruled  the  ob- 
jection and  admitted  the  note  in  evidence,  and  upon  these  facts  ren- 
dered judgment  for  the  plaintiff  for  the  amount  of  the  note  with  in- 
terest.   To  each  of  these  decisions,  the  defendant  excepted. 

PiERPOiNT,  Ch.  J.  It  appeared  from  the  exceptions  that  the  note 
on  which  the  plaintiff  seeks  to  recover,  was  given  for  a  rifle  purchased 
by  one  Wilson  of  the  plaintiff;  that  the  defendant  signed  the  note  to 
the  plaintiff,  as  surety  for  said  Wilson ;  that  Wilson  procured  the  note 
to  be  drawn,  and  had  it  made  payable  to  Franklin  Derby,  supposing 
that  to  be  the  plaintiff's  name,  as  he  was  commonly  called  Frank. 
After  the  note  had  been  signed  by  the  said  Wilson  and  the  defendant, 
Wilson  took  it  to  the  plaintiff,  who  noticed  that  it  was  payable  to 
Franklin  instead  of  Francis  E.  Derby,  the  plaintiff's  name.  Wilson 
then  consented  that  the  plaintiff  should  alter  the  name  of  the  payee 
from  Franklin  to  Francis  E.,  and  the  plaintiff  did  so  without  the 
knowledge  of  this  defendant. 

The  defendant  now  claims  that  such  alteration  of  the  note,  without 
his  consent,  invalidates  the  instrument  as  to  him,  and  discharges  his 
liability.  Whether  it  is  to  have  such  effect  depends  upon  the  nature 
of  the  alteration.  Was  it  a  material  or  an  immaterial  alteration?  The 
alteration  having  been  made  by  a  party  to  the  note  if  it  is  material  it 
invalidates  it,  otherwise  not. 

It  appears  from  the  case  that  the  plaintiff  is  the  person  to  whom  the 
note  was  given  for  property  purchased  of  him,  and  this  was  under- 
stood by  all  the  parties.  This  defendant  knew,  when  he  signed  the 
note,  what  it  was  given  for,  and  to  whom  it  was  intended  to  be  made 
payable.  He  intended  to  sign  a  note  payable  to  the  plaintiff,  and  sup- 
posed he  had  done  so.  It  turned  out  that  Wilson  had  mistaken  the 
given  name  of  the  plaintiff,  and  he  consented  that  the  plaintiff  should 
make  the  alteration  so  as  to  make  the  note  just  what  Wilson  and  the 
defendant  supposed  it  was  when  they  executed  it.  The  change  made 
no  alteration  in  the  liability  or  obligation  of  the  makers.  It  neither  en- 
larged, diminished,  or  varied  that  obligation.  There  was  no  change 
in  the  party  to  whom  the  obligation  was  assumed.  The  only  effect  of 
the  alteration  was  to  correctly  describe  the  party  to  whom  the  promise 
was  in  fact  understandingly  made. 


Alterations  581 

In  the  second  volume  of  Parson  on  Notes  and  Bills,  p.  560,  it  is  said, 
"Adding  the  names  in  full  of  a  firm  to  a  bill  drawn  by  them  in  the 
firm  name,  has  been  held  no  alteration,  as  being  in  effect  only  adding 
the  Christian  names  of  the  drawees,  whose  surnames  had  been  affixed 
to  the  bill  before  acceptance.  So  if  the  surname  of  the  payee  be  in- 
terlined subsequent  to  the  delivery,  and  it  be  proved  that  the  note  was 
originally  given  to  this  payee,  the  alteration  is  immaterial.  So  where 
a  note  made  payable  to  a  partnership  under  one  name  is  endorsed  by 
a  surety,  and  afterwards  altered  by  the  maker  and  payee,  without  the 
knowledge  of  the  surety,  so  as  to  be  to  the  same  firm  under  another 
name,  the  alteration  is  immaterial  and  does  not  discharge  the  surety." 
And  various  authorities  are  cited  in  support  of  these  propositions,  and 
the  same  author  after  a  full  examination  of  the  cases,  draws  therefrom 
the  following  conclusion :  "Wherever  neither  the  rights  nor  interests, 
duties  nor  obligations  of  either  of  the  parties  are  in  any  manner 
changed,  the  alteration  is  immaterial." 

Applying  these  principles  to  the  case  before  us,  it  is  very  clear  that 
the  judgment  of  the  county  court  was  right,  and  must  be 

Affirmed. 


HAGAN  V.  MERCHANT'S  &  BANKER'S  INS.  CO. 
81  Iowa  321.     (1890) 

Action  upon  a  policy  of  insurance  against  loss  by  fire.  The  petition 
alleges  the  issuing  of  the  policy,  the  loss  of  the  property  by  fire,  the 
value  thereof,  and  notice  and  proof  of  loss  within  sixty  days. 

Given,  J.  On  the  trial,  plaintiff  offered  in  evidence  the  policy,  and 
copy  of  application  attached,  to  which  defendant  objected,  on  the 
ground  that  it  was  apparent  on  the  face  of  the  instruments  that  they 
had  been  changed ;  wherefore  the  burden  was  on  plaintiff  to  account 
for  the  change  before  he  could  introduce  the  instruments  in  evidence, 
and  also  upon  the  ground  that  plaintiff  confessed  the  change  in  his  re- 
ply, and  had  not  offered  evidence  tending  to  avoid  it.  This  objection 
was  overruled.  The  defendant  asked  an  instruction  to  the  effect  that, 
if  the  jury  found  that  there  was  ground  for  suspicion  on  the  face  of 
the  instruments  that  the  policy  had  been  altered  as  alleged,  then  the 
burden  was  upon  the  party  offering  it  in  evidence  to  show  "when 
such  alleged  alteration  was  performed,  by  whom,  and  the  intent  with 


582  Cases  on  Evidence        , 

which  done."  This  instruction  was  refused,  and  one  given  that  "the 
burden  of  establishing  that  the  words  were  added  to  one  or  both  of  the 
places  alleged  after  delivery  of  the  policy  rests  upon  the  defendant. 
The  overruling  of  said  objection,  the  refusal  to  instruct  as  asked,  and 
the  instruction  given,  are  assigned  as  error. 

The  books  are  full  of  diverse  decisions  as  to  whether,  on  the  pro- 
duction of  a  written  instrument,  which  obviously  has  been  altered,'  it 
is  incumbent  upon  the  party  offering  it  in  evidence  to  explain  its  ap- 
pearance. Some  hold  that  an  alteration  apparent  on  the  face  of  the 
writing  raises  no  presumption  either  way;  some  that  it  raises  a  pre- 
sumption against  the  writing,  and,  therefore,  requires  some  explana- 
tion to  make  it  admissible ;  others  hold  that  it  raises  such  presumption 
only  when  the  apparent  alteration  is  suspicious;  and  yet  others,  that  it 
is  presumed,  in  the  absence  of  explanation,  that  the  alteration  had 
been  made  before  delivery.  The  authorities  are  so  numerous  that  we 
refrain  from  citing  any,  but  refer  to  the  American  and  English  Ency- 
clopedia of  Law  under  "Alteration  of  instruments,"  where  many  of  the 
authorities  sustaining  these  different  views  are  cited.  This  question 
was  incidentally  noticed,  but  not  passed  upon,  in  Jones  v.  Ireland,  4 
Iowa  69 ;  Ault  v.  Fleming,  7  Iowa  143 ;  Wilson  v.  Harris,  35  Iowa 
507;  and  Wing  v.  Stewart,  68  Iowa  13.  These  cases  were  disposed 
of  upon  other  grounds,  and  the  question  before  us  has  never  been  di- 
rectly passed  upon  by  this  court.  The  issues  involved  in  this  defense 
are  whether  the  policy  was  altered  as  alleged,  and,  if  so,  whether  after 
delivery  to  plaintiff  and  without  authority  of  the  defendant.  In  Jones 
V.  Ireland,  supra,  it  was  held  to  be  a  question  of  fact  for  the  jury 
whether  there  had  been  an  alteration  as  alleged.  The  instrument  was 
certainly  competent  evidence  as  bearing  upon  this  question,  and  was 
therefore,  proper  to  go  to  the  jury,  but  the  contention  is  whether  the 
plaintiff  was  entitled  to  offer  it  without  explanatory  proofs. 

If  the  appearance  of  the  instrument  or  other  testimony  tended  to 
support  the  charge  of  alteration,  it  was  the  duty  of  the  court  to  sub- 
mit the  issue  to  the  jury;  but  if  the  instrument  or  other  proofs  did  not 
so  tend,  then  the  issue  should  be  withheld,  as  in  any  other  case  where 
there  is  no  testimony  tending  to  support  the  allegation.  No  complaint 
is  made  of  the  action  of  the  court  in  submitting  the  issue,  and  we  may 
assume,  therefore,  that  the  appearance  of  the  instrument  does  tend  to 
support  the  charge  of  alteration.  The  questions  as  to  whether  there 
were  alterations,  and,  if  so,  whether  fraudulent,  were  fairly  before  the 
jury,  and  the  instruments  were  competent  evidence  upon  those  issues. 
Question  is  made  whether  it  was  necessary  for  the  plaintiff  to  offer  the 


Alterations  583 

policy  in  support  of  his  action.  We  think  upon  the  pleadings  it  was 
not.  The  execution  of  the  paper  was  not  denied  only  in  the  sense  that 
it  was  not  the  policy  issued  by  the  defendant,  "for  that  the  same  has 
been  changed  and  altered,  without  their  knowledge  or  consent,  since 
its  delivery."-  This  is  not  such  a  denial  of  the  execution  of  the  instru- 
ment as  is  contemplated  in  section  2730  of  the  revised  Code.  It  is  con- 
tended that  the  plaintiff,  in  his  reply,  confessed  the  alteration  and 
pleaded  in  avoidance  that  it  was  altered  before  delivery.  The  reply 
will  not  admit  of  such  construction.  It  expressly  denies  alteration, 
and,  in  the  sentence  where  it  is  claimed  an  avoidance  is  pleaded,  it  is 
said  that  plaintiff  does  not  admit  that  any  change  was  made.  If  this 
question  rested  upon  pleadings  alone,  we  would  say,  under  the  general 
rule,  that  the  burden  was  upon  the  defendant  to  establish  his  allega- 
tions that  the  instruments  were  altered  after  delivery,  and  without  its 
authority.  We  think  there  was  no  prejudicial  error  in  admitting  the 
instruments  over  defendant's  objections;  for,  if  they  had  not  been  in- 
troduced by  the  plaintiff,  they  certainly  would  have  been  introduced 
by  the  defendant  in  support  of  its  defense  of  alteration. 

Our  conclusion  is,  upon  an  examination  of  the  whole  case,  that  the 
judgment  of  the  district  court  should  be 

Affirmed. 


COMMONWEALTH  v,  BANK. 
p8  Mass.  12.     (1867) 

Bill  of  interpleader  filed  by  the  attorney  general,  pursuant  to  c.  19 
of  the  Resolves  of  1866,  against  the  Emigrant  Industrial  Savings 
Bank,  a  corporation  under  the  laws  of  New  York,  and  William  S. 
Houghton,  for  the  purpose  of  determining  whether  five  bonds  of  the 
Commonwealth,  for  one  thousand  dollars  each  dated  October  i,  1861, 
and  issued  by  virtue  of  the  St.  of  1861,  c.  216,  had  not  been  made  void 
as  against  the  Commonwealth,  by  reason  of  a  material  alteration 
thereof;  and,  if  not,  then  what  were  the  respective  rights  of  the  re- 
spondents in  and  to  the  same,  in  the  manner  provided  by  the  resolve. 

Hoar,  J.  This  case  is  one  of  great  practical  importance,  and  pre- 
sents a  question  of  much  interest  to  the  owners  of  a  species  of  securi- 
ties in  which  very  large  amounts  of  property  are  invested.  Both  par- 
ties have  strong  claims  to  the  consideration  of  the  court,  and  come 


584  Cases  on  Evidence 

before  us  with  equities  which  make  a  decision  against  either  painful. 
We  have  in  effect  to  decide  which  of  two  innocent  parties  shall  suffer 
a  considerable  loss;  and  their  rights  are  found  to  depend  upon  the 
application  of  principles  in  a  manner  which  may  lead  to  very  impor- 
tant consequences. 

Upon  the  evidence  reported,  we  have  no  difficulty  in  finding  the  prin- 
cipal facts  in  issue.  The  five  bonds  which  form  the  subject  of  the 
controversy  are  shown  by  satisfactory  proof  to  be  the  same  which 
were  stolen  from  Mr.  Houghton  in  May,  1863.  On  the  7th  of  No- 
vember, 1863,  they  were  received  by  the  Emigrant  Industrial  Savings 
Bank  in  the  usual  course  of  business,  for  a  valuable  consideration, 
and  without  notice,  express  or  implied,  of  any  defect  in  the  title  which 
the  bank  then  acquired,  and  without  any  reasonable  cause  to  question 
their  genuineness.  In  the  interval  of  time  between  these  dates  the 
numbers  of  the  bonds  had  been  fraudulently  altered ;  by  whom,  it  does 
not  appear;  but  the  natural  inference  would  be,  by  the  thief,  or  some 
one  in  privity  with  him. 

These  bonds  were  payable  to  the  holder  or  bearer,  and  were  nego- 
tiable instruments  which  would  pass  by  delivery.  The  important  ques- 
tions which  we  have  to  decide  are,  i.  Is  the  alteration  of  the  numbers 
upon  the  bonds  a  material  alteration?  2.  If  not,  is  it  such  an  altera- 
tion as,  if  made  with  a  fraudulent  purpose,  will  discharge  the  contract, 
so  that  it  will  be  invalid  in  the  hands  of  a  bona  fide  holder  for  a  val- 
uable consideration,  without  notice,  whose  title  is  acquired  after  the 
alteration  ? 

No  case  has  been  cited  in  which  such  an  alteration  has  ever  been 
held  to  be  material,  and  we  are  not  aware  that  any  can  be  found.  We 
think  the  change  of  the  numbers  was  not  a  material  alteration  of  the 
bonds. 

The  remaining  question  involves  a  point  of  greater  difficulty.  It 
has  been  held  that  an  immaterial  alteration,  if  made  with  a  fraudulent 
intent,  will  avoid  a  written  instrument,  i  Greenl.  Ev.  sec.  568 ;  2  Par- 
sons on  Notes  &  Bills,  572,  and  cases  there  cited.  But  it  is  to  be 
noticed  that  each  of  these  text  writers  gives  as  the  reason  of  the  rule, 
that  the  party  who  loses  the  benefit  of  the  writing  has  wilfully  and 
wrongfully  destroyed  the  identity  of  the  contract.  But  if  the  rule  is 
not  thus  limited  in  its  application,  and  if  the  attempt  to  perpetrate  a 
fraud  may  be  justly  punished  by  a  loss  of  his  right  to  enforce  the 
contract,  it  remains  to  be  considered  whether  the  incapacity  to  sue 
will  follow  the  instrument  into  the  hands  of  an  innocent  holder,  who 
has  taken  it  in  good  faith.    It  has  indeed  been  decided  in  the  case  of 


Alterations  585 

a  material  alteration  of  a  note,  that  it  beccMnes  invalid  even  in  the 
hands  of  a  subsequent  indorsee  for  value.  Wade  v.  Withington,  i 
Allen  561.  But  the  opinion  in  that  case  was  put  upon  the  express  and 
only  ground  that  the  identity  of  the  contract  was  destroyed;  that  the 
indorsee  had  not  received  the  note  which  the  promisor  made.  We  do 
not  find  that  it  has  ever  been  held  that  even  a  fraudulent  alteration 
of  a  paper  upon  which  a  contract  is  written,  leaving  the  language  of 
the  contract,  in  form  and  substance,  unchanged,  and  not  affecting  the 
manner  of  its  legal  proof,  would  so  far  affect  the  validity  of  the  con- 
tract as  to  make  it  invalid  in  the  hands  of  an  innocent  holder,  wholly 
ignorant  of  the  fraud.  The  general  rule  is  that  he  who  is  guilty  of  a 
fraud  shall  not  be  permitted  to  avail  himself  of  it.  If  the  rule  is  ex- 
tended further,  and  if,  on  grounds  of  public  policy,  it  should  be  held 
that  one  who  claims  title  under  the  fraudulent  person  shall  only  suc- 
ceed to  his  rights,  it  is  difficult  to  see  the  just  application  of  the  prin- 
ciple to  the  case  at  bar.  The  innocent  holder  of  a  negotiable  security 
payable  to  bearer  does  not  take  his  title  from  that  of  any  pfevious 
holder,  but  under  the  original  contract  of  the  promisor,  as  construed 
by  the  law.  The  thief  who  stole  these  bonds  had  no  title  to  them  what- 
ever. The  innocent  holder  does  not  claim  under  him,  in  form  or  sub- 
stance. The  promisor  may  have  parted  with  them  without  considera- 
tion, but  that  makes  no  difference.  The  promise  to  pay  to  the  bearer 
or  holder  attaches  to  the  possession  for  value  without  notice  of  the 
unaltered  contract. 

The  numbers  placed  upon  these  bonds  gave  the  Commonwealth 
means  of  checking  or  detecting  an  over-issue  of  them,  perhaps  some 
security  against  forgery,  and  the  means  of  tracing  the  particular  in- 
strument through  successive  changes  of  ownership.  To  the  owners 
of  the  bonds  after  they  were  issued  they  afforded  the  means  of  iden- 
tifying their  property.  But  this  might  have  been  done  by  a  private 
mark  upon  the  back  of  the  paper  or  by  the  stamping  of  the  owner's 
name  upon  it.  We  cannot  think  that  the  fraudulent  removal  of  such 
a  mark  of  identification  could  affect  the  rights  of  parties  not  privy  to 
the  fraud,  nor  affected  with  notice  of  it.  The  case  is  wholly  different 
from  those  cited  in  argument,  of  securities  tainted  with  usury,  and  the 
like,  where  a  statute  makes  the  contract  void,  into  whosesoever  hands 
it  may  come.  Here  is  no  statute  impediment.  Nor  is  the  holder  met 
with  the  difficulty  that,  though  without  his  own  fault,  he  has  failed  to 
receive  the  contract  which  the  promisor  made.  He  is  innocent  of  any 
fraud ;  he  has  the  contract  unchanged  in  form  and  with  nothing  added 
or  taken  away  which  affects  its  obligation  or  proof.    It  is  a  question 


586  Cases  on  Evidence 

of  the  policy  of  the  law  which  discountenances  fraud  but  seeks  to  inflict 
the  penalty  for  it  only  on  the  fraudulent;  and  which  protects  the  free 
circulation  of  negotiable  paper. 

We  are  of  the  opinion  that  the  Emigrant  Industrial  Savings  Bank 
has  established  its  title  to  the  bonds  in  question  against  the  Common- 
wealth, and  is  entitled  to  a  decree  accordingly. 

Note.  With  respect  to  the  proof  of  alterations  the  decisions  are  In  hope- 
less conflict.  There  are  at  least  six  different  views  as  regards  presumptions. 
These  six  views,  as  stated  in  Hughes  on  Evidence  are  as  follows:  "(1)  a 
presumption  exists  that  the  alteration  was  made  contemporaneously  with, 
or  before,  the  execution  of  the  instrument;  (2)  a  presumption  exists  that 
it  was  made  after  the  execution  of  the  instrument;  (3)  no  presumption 
exists  in  any  case  as  to  the  time  when  it  was  made;  (4)  no  presumption 
exists  as  to  the  time  when  it  was  made  if  no  suspicious  circumstances  are 
apparent  on  the  face  of  the  Instrument,  but  where  there  are  suspicious 
circumstances  connected  with  it  thei-e  is  a  presumption  that  It  was  made 
after  the  execution  of  the  instrument;  (5)  as  a  general  rule,  it  is  pre- 
sumed to  have  been  made  contemporaneously  with  the  execution  of  the  in- 
strument, but  if  any  ground  of  suspicion  is  apparent  upon  the  face  of  the 
instrument  the  law  presumes  nothing;  (6)  the  presumption,  if  any,  which 
arises,  depends  upon  the  character  of  the  instrument."  And,  as  stated  in 
Hughes  on  Evidence,  "The  first  of  these  views  is  based  largely  on  the 
presumption  of  innocence,  and  is  recognized  in  numerous  decisions  (Lewis 
V.  Watson,  98  Ala.  479,  39  Am.  St.  Rep.  82;  Hagan  v.  Merchants'  Ins.  Co., 
81  la.  321,  25  Am.  St.'  Rep.  493;  Hunt  v.  Gray,  35  N.  J.  L.  27;  Brand  v. 
Johnrowe,  60  Mich.  210).  The  second  view  Is  supported  by  comparatively 
few  decisions,  and  it  has  been  severely  criticised.  It  still  obtains,  however, 
in  a  few  jurisdictions,  and  seems  to  be  confined  for  the  most  part  to  nego- 
tiable Instruments.  The  third  view  is  supported  by  many  decisions  (Merritt 
v.  Boyden,  191  111.  136,  60  N.  E.  R.  907;  Simpson  v.  Davis,  119  Mass.  269, 
20  Am.  Rep.  324;  Martin  v.  Tuttle,  80  Me.  207,  14  Atl.  R.  207).  The  fourth 
view  is  supported  by  decisions  of  several  leading  courts  (Smith  v.  United 
States,  69  U.  S.  219;  Powell  v.  Ranks,  146  Mo.  620;  Alabama  etc..  Land  Co. 
V.  Thompson,  104  Ala.  570,  53  Am.  St.  Rep.  80;  Bradley  v.  Dells  Lumber 
Co.,  105  Wis.  245;  Collins  v.  Ball,  82  Tex.  259).  The  fifth  view,  according 
to  Reynolds,  is  the  American  rule  (Reynolds'  Steph.  Evld.,  art  89).  While 
the  sixth  view  is  supported  by  Stephen,  Taylor  and  Greenleaf,  as  well  as  by 
many  decisions  (Bailey  v.  Taylor,  11  C?onn.  531,  541;  Boothby  t.  Stanley,  34 
Me.  515,  516)." 


The  Best  Evidence  Rule  587 

the  best  evidence  bulri 

CERNY  V.  GLOS. 
261  III.  331.    (1914) 

Cartwright,  J.  The  circuit  court  of  Cook  County  entered  a  de- 
cree setting  aside  a  tax  deed  to  Jacob  Glos,  one  of  the  appellants,  and 
a  quit-claim  deed  executed  by  him  to  Emma  J.  Glos  and  A.  H.  Glos, 
the  other  appellants  (as  clouds  upon  the  title  of  John  Vaclav  Cerny, 
the  appellee,  to  lot  90  in  Claflin's  subdivision  of  block  i  of  Johnston 
&  Lee's  subdivision  of  the  south-west  quarter  of  section  20,  township 
69  North,  range  14,  in  Cook  county,  and  the  record  has  been  brought 
to  this  court  by  appeal. 

We  find  it  impossible  to  affirm  the  decree  in  this  case.  The  appel- 
lee, having  alleged  title  to  the  lot,  asked  the  court  to  set  aside  a  tax 
deed  as  a  cloud  on  his  title,  and  his  ownership  being  denied  by  the  an- 
swers, he  was  required  to  prove  that  he  was  the  owner  of  the  lot.  ,  Un- 
less a  party  shows  title  to  land  where  the  title  is  in  issue,  it  is  not  for 
him  to  complain  that  there  is  a  cloud  upon  the  title.  (Wing  v.  Sher- 
rer,  yy  111.  200;  Walker  v.  Converse,  148  id.  622;  Glos  v.  Goodrich, 
175  id.  20;  Glos  V.  Kenealy,  220  id.  540;  Coel  v.  Glos,  232  id.  142.) 
The  only  evidence  that  appellee  had  title  consisted  of  a  certified  copy 
of  a  deed  dated  August  12,  1909,  from  a  master  in  chancery  to  him, 
and  the  copy  was  objected  to  on  the  ground  that  no  sufficient  founda- 
tion had  been  laid  for  the  introduction  of  secondary  evidence.  Section 
36,  of  chapter  30  of  the  Revised  Statutes  fixes  the  conditions  upon 
which  a  certified  copy  of  a  record  of  a  deed  may  be  read  in  evidence, 
and  there  was  no  attempt  whatever  to  comply  with  the  conditions 
there  prescribed.  So  far  as  appeared,  the  master's  deed  was  in  exist- 
ence and  in  the  possession  of  another  party  in  the  same  city  where  the 
case  was  heard.  The  tax  deed  and  the  deed  from  Jacob  Glos  to  the 
other  appellants  were  all  proved  by  certified  copies,  and  each  copy  was 
objected  to  for  want  of  a  sufficient  foundation  for  its  introduction. 
The  court  erred  in  admitting  the  copies  in  evidence  and  making  them 
the  basis  of  its  decree  (Scott  v.  Bassett,  174  111.  390;  186  id.  98,  and 
194  id.  602;  Glos  V.  Talcott,  213  id.  81.)  We  are  not  authorized  to 
disregard  rules  prescribed  by  the  General  Assembly  for  the  admission 


i  Hughes  on  Eridence,  p.  217. 


588  Cases  on  Evidence 

of  secondary  evidence,  and  every  citizen  is  entitled  to  the  benefit  of 
such  rules. 
The  decree  is  reversed  and  the  cause  is  remanded. 

Reversed  and  remanded. 


POST  V.  LELAND. 
184  Mass.  601.     (1904) 


Lathrop,  J.  This  is  an  action  of  contract  under  the  St.  of  1890,  c. 
437,  against  brokers,  to  recover  various  sums  of  money  paid  by  the 
plaintiff  to  the  defendants  as  margin  for  the  purchase  of  certain  se- 
curities bought  and  afterwards  sold  by  the  defendants.  The  case  was 
sent  to  an  auditor,  who  found  for  the  defendants.  It  was  afterwards 
tried  in  the  Superior  Court  before  a  jury.  A  verdict  was  returned 
for  the  defendants,  and  the  case  is  before  us  on  the  plaintiff's  excep- 
tions to  the  exclusion  of  evidence,  and  to  the  refusal  to  give  certain 
instructions  fequested.    We  will  consider  these  in  their  order. 

The  first  exception  relates  to  the  refusal  of  the  judge  to  admit 
secondary  evidence  of  the  contents  of  letters  from  the  defendants  to 
the  plaintiff.  The  plaintiff  testified  in  the  first  place  that  he  had  re- 
ceived the  letters,  but  that  they  might  be  lost,  he  did  not  know.  Then 
he  testified  that  he  had  not  any  letters,  which  he  subsequently  quali- 
fied by  saying:  "We  did  not  bring  the  letters  here."  There  was  no 
attempt  to  show  that  any  search  had  been  made  for  the  letters  or  that 
they  were  lost,  and  the  judge  rightly  excluded  secondary  evidence  of 
their  contents. 

Exceptions  overruled. 


TRAINOR  v.  LEE,  CITY  TREASURER. 
34  R-  I'  345-    (1912) 

Parkhurst,  J.  This  is  an  action  of  the  case  to  recover  the  sum  of 
four  hundred  and  forty-three  dollars  and  twenty-one  cents  ($443.21), 
for  services  rendered  by  the  plaintiff  as  Chief  of  Police,  Town  Ser- 


The  Best  Evidence  Rui,e  589 

geant,  and  Dog  Officer  of  the  town  of  Cranston  and  the  city  of  Crans- 
ton. 

The  next  exception  relates  to  the  testimony  offered  by  the  defend- 
ant's counsel,  that  there  was  no  appropriation  made  by  any  proper 
authority,  from  which  payment  of  the  plaintiff's  claim  could  properly 
be  made.  Defendant's  counsel  offered  himself  as  a  witness  as  to  the 
facts,  without  attempting  to  produce,  or  to  account  for  the  lack  of, 
record  evidence  on  this  point,  where  it  was  quite  evident  that  such 
record  evidence  would  and  should  have  been  produced,  if  it  existed. 
It  is  quite  manifest  that  it  would  have  been  error  to  allow  him  to  offer 
his  oral  evidence  of  such  matters.  3  Elliot  Ev.  sec.  1942 ;  Owings  v. 
Speed,  5  Wheat.  420 ;  Hutchinson  v.  Pratt,  1 1  Vt.  402 ;  Gilbert  v.  New 
Haven,  40  Conn.  102;  Morrison  v.  Lawrence,  98  Mass.  219,  221.  This 
exception  is  overruled. 

We  find  no  error;  the  exceptions  alleged  by  the  defendants  are  all 
overruled,  and  the  case  is  remitted  to  the  Superior  Court,  with  direc- 
tion to  enter  judgment  upon  the  verdict  for  the  plaintiff. 


EASTMAN  V.  DUNN. 
34  R.  I.  419.     (1912) 


Parkhurst,  J.  This  is  an  action  of  assumpsit  brought  in  the  Su- 
perior Court  for  the  Counties  of  Providence  and  Bristol,  April  29, 
1909,  by  Albert  F.  Eastman  against  William  J.  Dunn  and  Daniel  C. 
O'Connor,  to  recover  damages  for  breach  of  an  express  contract  set 
forth  in  the  plaintiff's  declaration  in  two  counts. 

Exception  9.  This  was  an  exception  to  the  admission  in  evidence 
of  a  copy  of  a  letter  which  the  plaintiff  testified  he  wrote  to  each  of 
the  defendants  and  sent  to  them  by  registered  mail.  It  was  objected 
to  on  two  grounds — first,  because  it  was  not  the  best  evidence  and  no 
notice  had  been  given  to  the  defendants  to  produce  the  original,  and 
second,  because  it  was  written  by  the  plaintiff  himself  and  had  no  rele- 
vancy except  as  proof  of  the  truth  of  a  claim  made  by  him  in  it;  in 
other  words,  because  it  was  manufactured  testimony.  We  are  of  the 
opinion  that  the  letter  was  properly  admitted;  it  was  a  duplicate  car- 
bon copy  without  erasure  or  alteration  of  a  letter  proved  to  have  been 
sent  by  registered  mail  to  each  of  the  defendants,  and  appears  upon  its 
face  to  be  only  a  notice  to  them  that  the  plaintiff  would  be  obliged  to 


590  Cases  on  Evidexce 

resort  to  law  for  the  protection  of  his  rights.  It  does  not  purport  to 
set  forth  the  terms  of  any  contract  between  the  parties  and  cannot  be 
regarded  as  self-serving.  Nor,  in  view  of  the  fact  that  the  letter  was 
a  mere  notice  intended  to  ascertain  definitely  if  possible  whether  the 
defendants  would  carry  out  their  agreements  with  the  plaintiff  with- 
out in  any  way  stating  what  those  agreements  were,  do  we  think  it 
was  necessary  that  the  defendants  be  notified  to  produce  the  original ; 
it  seems  to  us  to  come  within  the  exception  to  the  rule  regarding  sec- 
ondary evidence,  to  the  eflFect  that  a  notice  of  claim  may  be  proved 
by  parol  or  by  the  duplicate  and  the  original  need  not  be  required.  25 
Am.  &  Eng.  Encyc.  of  Law  (25  ed.)  p.  171 ;  Eagle  Bank  v.  Chapin, 
3  Pick.  180;  Penn  &c.  R.  Co.  v.  Braxton,  34  Fla.  479. 


COM.  UNION  ASSUR.  CO.,  LTD.  OF  LONDON,  ENG.,  v. 

WOLFE. 

41  Okla.  342.     (1914) 

Action  by  C.  Dale  Wolfe,  trustee  of  the  estate  of  D.  A,  Trotter  & 
Co.,  against  the  Commercial  Union  Assurance  Company  Limited,  of 
London,  England.  Judgment  for  plaintiff,  and  defendant  brings  er- 
ror.   Affirmed. 

Opinion  by  Galbraith,  C.  D.  A.  Trotter  &  Co.,  a  partnership, 
were  the  insured.  After  the  loss  upon  the  policy  in  suit,  the  insured 
were  adjudged  bankrupts,  and  the  plaintiff,  C.  Dale  Wolfe,  was  elected 
and  qualified  as  trustee,  and,  as  such,  prosecuted  the  action  on  the  pol- 
icy, and  recovered  a  judgment,  from  which  the  defendant  appealed. 

The  remaining  assignments  complain  of  the  rulings  of  the  court  in 
admitting  oral  testimony  over  the  objection  of  the  insurance  company 
to  prove  the  value  of  the  stock  of  merchandise  destroyed  by  the  fire. 
Plaintiff  was  permitted  to  prove  by  the  insured  that  the  value  of  the 
stock  of  goods  at  the  time  the  policy  was  written  was  $2,600;  that  the 
amount  of  goods  purchased  between  that  time  and  the  date  of  the  fire 
was  $600;  that  the  amount  of  his  cash  sales  between  the  date  of  the 
policy  and  the  loss  was  about  $600.  This  witness  was  corroborated 
as  to  the  value  of  the  stock  at  the  time  of  the  fire  by  another  witness. 
who  was  formerly  in  partnership  with  the  insured,  and  owning  a  half 
interest  in  the  business,  and  who  sold  out  some  four  months  before 
the  policy  was  written,  but  was  familiar  with  the  stock  and  its  value 


Ths  Best  Evidence  Rui,e  591 

froii  that  time  up  to  the  fire.  This,  it  seems,  was  the  best  evidence 
available  for  showing  the  amount  of  the  loss  in  the  absence  of  the 
books,  which,  it  had  been  shown,  could  not  be  produced,  because  they 
had  been  lost  or  stolen,  and  through  no  fault  or  negligence  of  the  in- 
sured. This  character  of  testimony  was  competent.  Its  weight  was 
for  the  jury.  Secondary  evidence  is  admissible  in  the  absence  of  pri- 
mary evidence,  especially  where  the  absence  of  primary  evidence  is 
satisfactorily  accounted  for, 

'"And  the  one  general  rule  that  runs  through  all  the  doctrine  of  trial 
is  this,  that  the  best  evidence  the  nature  of  the  case  will  admit  of  shall 
always  be  required,  if  possible  to  be  had ;  but  if  not  possible,  then  the 
best  evidence  that  can  be  had  shall  be  allowed."  (3  Blackstone,  p. 
368.) 

"Where  there  are  no  books  or  inventories,  or  they  have  been  de- 
stroyed, secondary  evidence  is  admissible  to  show  the  value  of  the  de- 
stroyed property."     (Cooley's  Briefs,  Law  of  Ins.,  p.  3123.) 

"Merchants  engaged  in  diflferent  lines  of  business,  who  saw  a  stock 
of  insured  goods  before  it  was  destroyed  by  fire  may  testify  as  to  the 
value  of  such  stock,  although  their  testimony  is  not  as  satisfactory  as 
might  be  desired."  (Graves  v.  Merchants  &  Bankers'  Mfg.  Co.,  82 
Iowa  637,  31  Am.  St.  R.  507.) 

The  effect  of  this  testimony  was  to  show  that  the  loss  sustained 
exceeded  $2,000,  the  amount  of  the  poHcy  being  $1,500,  and  it  was 
sufficient  to  sustain  the  verdict  of  the  jury  for  the  full  amount  of  the 
policy. 

-^The  record  shows  that  the  trial  court  gave  every  instruction  to  the 
jury  which  the  insurance  company  requested,  and  that  every  possible 
phase  of  their  contention  in  this  suit  was  fairly  presented  to  the  jury 
in  the  instructions  by  them,  and,  there  being  ample  evidence  in  the 
record  to  sustain  the  verdict  of  the  jury,  we  see  no  reason  why  the 
judgment  appealed  from  should  not  be 

Affirmed. 


WATSON  V.  LAWRENCE. 
134  La.  194.    (1914) 


BrEaux,  C.  J.     This  suit  involves  the  possession  of  notes,  aggre- 
gating, exclusive  of  interest,  exactly  $2,000. 

Interveners'  demand  was  rejected  in  the  District  Court. 


592  Cases  on  Evidence 

In  the  Court  of  Appeal  the  court  decided  that  there  should  have 
been  a  nonsuit  on  the  intervention. 

The  ground  of  the  Court  of  Appeal  for  the  conclusion  was  that 
the  certificate  of  marriage  was  the  best  evidence  of  the  marriage, 
and,  until  it  was  produced,  or  its  absence  explained,  the  evidence  of 
eyewitnesses  to  the  ceremony  and  all  other  evidence,  was  secondary 
and  not  the  best  evidence. 

The  vital  question  here  is  whether  there  was  a  legal  marriage  of 
the  mother  of  interveners  to  John  Lawrence. 

The  onus  of  proof  of  the  alleged  marriage  was  with  the  interveners. 

Evidence  in  support  of  the  alleged  marriage,  said  the  court,  consists 
of  the  depositions  of  several  witnesses,  including  the  mother  of  the 
interveners  Mrs.  Julian  Lawrence,  taken  in  Illinois,  who  testified 
that  she  had  in  her  possession  a  marriage  certificate,  "which  she  at- 
tached to  her  answer." 

Interveners  in  the  District  Court  offered  the  deposition  of  this 
witness  and  the  asserted  certificate. 

Objected  to  by  plaintiff  because  certificate  was  not  authenticated, 
and  objection  to  the  testimony  urged  because  it  was  an  attempt  to 
prove  marriage  by  parol ;  that  there  was  a  certificate  of  marriage 
which  could  be  obtained. 

According  to  the  decisions  heretofore  cited,  parol  evidence  of  per- 
sons present,  or  within  whose  knowledge  beyond  question  there  was 
a  marriage,  is  considered  as  direct  or  primary  evidence. 

The  full  text  of  the  opinion  does  not  convey  the  meaning  that  proof 
of  marriage  is  to  be  considered  in  the  same  light  as  evidence  relating 
to  proof  of  the  title  to  realty  and  testimony  relating  to  written  agree- 
ments. 

The  fact  of  marriage  may  be  established  by  oral  testimony  of  per- 
sons who  were  present  at  the  ceremony.  Encyc.  of  Evidence,  vol.  8, 
p.  465. 

For  reasons  stated,  it  is  ordered,  adjudged,  and  decreed  that  the 
judgment  of  the  District  Court  is  annulled,  avoided,  and  reversed  as 
between  plaintiff  on  the  one  hand  and  the  interveners,  and  as  between 
interveners  and  the  defendant. 

It  is  further  ordered,  adjudged,  and  decreed  that  the  judgment  of 
the  Court  of  Appeals  is  avoided,  annulled,  and  reversed  as  between 
the  interveners  on  the  one  hand  and  the  plaintiff  and  intervener  on 
the  other,  and  the  defendant  and  intervener  on  the  other.  The  case 
is  remanded  to  the  District  Court,  to  be  further  proceeded  with"  in 
accordance  with  the  views  before  expressed. 


The  Best  Evidence  Rule  593 

BORNSTEIN  v.  BERLINER. 

184  III.  A  pp.  ^ip.     (1912) 

McSuRELY,  J.  Lena  Bornstein,  hereinafter  called  plaintiff,  ob- 
tained a  judgment  for  $600  against  Ella  Berliner  and  Isaac  Berliner, 
hereinafter  called  defendants,  in  a  suit  alleging  breach  of  covenants 
of  warranty  contained  in  a  warranty  deed  of  a  30  acre  farm  in  Michi- 
gan conveyed  by  defendants  to  plaintiff.  We  are  asked  to  reverse 
this  judgment. 

The  only  thing  for  this  court  to  pass  upon  is  the  question  of  the 
proof  by  the  defendants  of  the  alleged  abandonment  of  the  strip  by 
the  railroad.  This  question  was  one  for  the  jury  to  determine.  How- 
ever, we  think  the  Trial  Court  erred  in  excluding  certain  material 
and  competent  testimony  upon  this  point.  A,  S.  Miller,  called  on 
behalf  of  defendants,  was  asked  concerning  a  sale  of  part  of  the 
right  of  way  of  the  Kalamazoo  and  Lake  Michigan  Railway  Com- 
pany, the  witness  acting  at  the  time  as  agent  for  the  latter  company. 
It  was  sought  to  show  by  him  that  another  company  had  purchased 
a  portion  of  the  right  of  way  of  the  K.  &  L.  M.  Ry.  Co.,  as  tending 
to  show  abandonment  of  the  intention  by  the  Kalamazoo  Company 
to  construct  its  railroad  upon  the  right  of  way  in  question.  It  was 
also  sought  to  show  by  the  same  witness  statements  made  by  the 
president  of  the  K.  &  L.  M.  Ry.  Co.  with  reference  to  the  use  of 
the  right  of  way.  The  court  sustained  objections  to  this  testimony 
for  the  reason,  as  stated  by  the  court,  that  the  contents  of  any  writ- 
ten document  could  not  be  shown  by  parol  evidence.  We  do  not 
understand  that  defendants  were  seeking  to  prove  the  contents  of  a 
written  document,  but  only  the  fact  of  transactions  touching  portions 
of  the  right  of  way  of  the  Kalamazoo  Company.  We  believe  the 
defendants  were  entitled  to  have  the  jury  consider  such  transactions, 
together  with  the  statements  of  the  president  of  the  Kalamazoo  Com- 
pany touching  the  plans  and  intentions  of  this  company  with  refer- 
ence to  its  right  of  way.  The  rulings  of  the  court  in  this  regard 
constituted  prejudicial  error. 

As  the  case  must  therefore  be  remanded,  we  refrain  from  com- 
menting upon  other  points  suggested  in  the  briefs  of  counsel. 

Reversed  and  remanded. 


594  Cases  on  Evidence 

SHARP  V.  HAMILTON. 
12  N.  J.  L.  log.    (1830) 

Drake,  J.  This  cause  was  tried  at  the  Sussex  Circuit,  in  Novem- 
ber, 1828.    The  defendant  confessed  lease,  entry,  and  ouster. 

The  plaintiflf  also  gave  some  evidence  of  the  possession  of  the 
defendant,  and  obtained  a  verdict  for  one  moiety  of  the  disputed 
premises.    This  verdict  is  sought  to  be  set  aside. 

Francis  Hamilton,  after  testifying  that  Benjamin  Hamilton  took 
possession  under  him  in  181 5,  on  cross-examination  said,  that  "he 
inferred  that  defendant  went  into  possession  under  witness  because 
there  was  an  agreement  respecting  the  premises  between  witness  and 
defendant."  And  the  agreement  being  in  writing,  and  not  produced, 
gave  rise  to  a  motion  to  overrule  Francis  Hamilton's  testimony ;  which 
the  court  refused  to  do.  The  fact  that  he  actually  took  possession 
was  one  entirely  independent  of  the  agreement,  and  the  testimony  as 
to  that  simply,  was  clearly  without  objection.  There  is  more  plausi- 
bility in  requiring  the  writing  as  the  best  evidence  to  shew  under 
whom  he  took  possession,  and  whether  under  witness  or  not.  But  the 
evidence  sought  to  be  overruled  was  not  as  to  the  particular  manner  or 
terms  of  the  holding,  but  merely  under  whom  he  took,  or  held.  And  it 
appears  to  me  too  strict  where  the  witness  swears  to  a  change  of 
possession,  and  that  it  was  by  his  permission  or  consent,  or  that 
the  defendant  took  under  him,  to  overrule  that  evidence  because 
there  may  be  a  written  lease  not  produced;  and  especially  where 
the  party  offering  the  evidence  is  a  stranger  to  the  contract.  It  is 
every  day's  practice,  in  actions  of  ejectment,  to  shew  that  one  per- 
son held,  or  holds,  under  another,  by  the  payment  of  rent,  or  even 
by  an  acknowledgment  of  the  tenant,  without  any  enquiry  whether 
there  is  a  written  contract  unless,  there  be  an  attempt  to  shew  fur- 
ther particulars  of  that  contract.  In  the  action  for  use  and  occu- 
pation, the  question  assumes  a  different  aspect.  There  the  tenancy 
is  directly  put  in  issue.  It  lies  at  the  foundation  of  the  plaintiff's 
action  to  shew  that  the  defendant  held  by  his  permission;  and  if 
there  be  a  writing,  that  must  be  produced,  not  merely  to  shew  the 
fact  of  the  holding,  but  that  its  contents  may  be  looked  into  to 
ascertain  the  quantum  of  damages  to  be  recovered. 

Rule  discharged. 


The  Best  Evidence  Rule  595 

COMMONWEALTH  v.  BLOOD. 
77  Mass.  74.     (1858) 

Complaint  on  St.  1855,  c.  215,  sec.  24,  for  keeping  intoxicating 
liquors  with  intent  to  sell  them  in  this  commonwealth. 
/  Upon  the  trial  the  government  witnesses  testified  to  going  with  a 
search  warrant  to  the  house  of  the  defendant,  and  that  the  defendant 
was  not  there  while  they  were  in  the  house.  The  district  attorney 
asked  a  witness,  "Where  did  you  go  while  there?"  The  defendant 
objected  to  any  evidence  of  what  the  witness  did  in  his  house  in  his 
absence;  but  the  court  ruled  that  the  question  might  be  put. 

The  witnesses  then  went  on  to  detail  their  acts  in  the  house,  and 
testified  that  they  found  on  the  premises  intoxicating  liquors  and 
five  jugs.  The  district  attorney  asked,  if  these  jugs  were  labelled. 
The  defendant  objected  to  this.  The  court  overruled  this  objection, 
and  admitted  the  following  answer,  which  was  objected  to  by  the 
defendant,  "The  jugs  were  labelled  with  pieces  of  leather  marked 
with  what  was  in  them."  The  district  attorney  then  asked,  "What 
marks  were  on  the  labels?"  To  this  the  defendant  objected.  The 
court  overruled  this  objection,  and  the  witness  answered,  "The  mark 
on  the  label  was  rye  whiskey."  The  jugs  were  not  produced,  nor 
the  labels,  nor  any  reason  given  for  not  producing  them. 

Merrick,  J.  The  several  rulings  of  the  presiding  judge,  to  which 
exceptions  were  taken  at  the  trial,  appear  to  us  to  have  been  correct. 

The  jugs  ajid  decanters  of  which  a  description  was  taken  are  well 
known  implements  of  traffic  in  that  branch  of  trade;  and  it  was  com- 
petent therefore  to  give  evidence,  in  support  of  the  prosecution,  of 
their  appearance  and  the  particular  places  in  the  dwelling-house  in 
which  they  were  found.  The  labels  on  the  jugs  do  not  come  within 
any  class  of  written  instruments,  the  contents  of  which  cannot  be 
proved  without  producing  the  original  paper  or  document,  or  account- 
ing for  its  loss  or  unavoidable  absence;  i  Greenl.  Ev.  sec.  90;  and 
the  testimony  therefore  concerning  them  was  unobjectionable. 

Bxceptions  overruled. 


596  Cases  on  Evidence 

RUMBOUGH  V.  SOUTHERN  IMPROVEMENT  COMPANY. 
112  N.  C.  751-    (1893) 

Civil  action,  heard  before  Hoke,  J.,  and  a  jury  at  Spring  Term, 
1892,  of  Madison  Superior  Court.  There  was  a  verdict  for  the  plain- 
tiff, and  from  the  judgment  thereon  defendant  appealed. 

BuRWELL,  J.  The  plaintiff's  action  is  founded  upon  a  draft  drawn 
in  his  favor  by  W.  E.  Watkins  for  the  sum  of  $950  and  accepted 
by  said  Watkins  in  the  name  of  the  defendant  corporation. 

It  appears  from  the  statement  of  the  case  on  appeal  that  some  of  the 
declarations  of  the  president  of  defendant  company,  as  to  the  authority 
of  Watkins  to  accept  this  draft,  as  we  understand  the  record,  were 
contained  in  a  letter  written  by  him,  and  the  objection  was  made 
that  the  contents  of  the  letter  should  not  be  spoken  of,  because  it 
was  not  produced,  nor  was  its  non-production  properly  accounted  for. 

If  its  contents  were  to  be  used  as  proof  of  a  contract  on  the  part 
of  the  company  that  it  would  acknowledge  and  pay  the  draft,  then 
it  was  very  clearly  improper  to  allow  the  witness  to  speak  of  the 
contents,  the  letter  not  being  produced,  unless  its  loss  was  accounted 
for  according  to  the  rules  of  law,  for,  in  that  view  of  the  matter, 
this  was  to  allow  parol  testimony  to  establish  what  was  contained  in 
a  written  agreement  without  first  proving  that  the  writing  was  lost 
or  destroyed. 

Inasmuch  as  the  defendant  is  entitled  to  a  new  trial  for  the  error 
above  pointed  out,  we  do  not  deem  it  necessary  to  consider  any  other 
of  the  numerous  exceptions  taken  by  its  counsel. 

New  trial. 


C.  &  N.  W.  R.  R.  CO.  v.  INGERSOLL. 

65  III.  39Q.    (18/2) 

McAllister,  J.  This  was  an  action  on  the  case,  in  the  County 
Court  of  De  Kalb  County,  by  appellees  against  appellant  as  common 
carrier,  for  breach  of  duty  in  not  delivering  a  quantity  of  wheat  and 
barley  shipped  by  the  former,  in  cars  of  the  latter,  at  Malta,  in  said 
county,  to  be  safely  and  securely  carried  to  Chicago,  and  delivered 
to  H.  S.  Eaton,  consignee. 


The  Best  Evidence  Rule  597 

*The  third  point  arising  is  that  there  was  error  in  excluding  sec- 
ondary evidence  offered  by  appellant,  of  the  contents  of  a  written 
contract  between  the  parties,  under  which,  as  was  claimed,  the  grain 
in  question  was  shipped.  The  evidence  of  loss  of  original  was  this : 
The  station  agent  of  appellant  obtained  it  from  appellees  at  Malta; 
then  he  delivered  it  into  the  hands  of  another  person  to  take  it  to 
Chicago  and  deliver  it  to  "the  general  freight  agent,  Wheeler,  who 
was  the  proper  custodian  of  it.  He  had  an  office  in  Chicago,  where 
he  usually  kept  papers,  books,  and  documents  belonging  to  his  de- 
partment, which,  with  the  contents  was  burned  October  9,  1871. 
Neither  the  messenger  who  took  it  from  the  station  agent  at  Malta, 
nor  Wheeler,  nor  any  witness  who  ever  saw  it  in  Wheeler's  possession 
or  in  his  office,  was  called  as  a  witness.  Now  from  the  facts  that 
the  station  agent  at  Malta  gave  it  to  a  messenger  to  take  it  to 
Wheeler,  and  the  burning  of  his  office,  the  court  was  called  to  pre- 
sume that  the  messenger  delivered  it  to  Wheeler,  and  the  latter  put 
it  in  his  office,  and  that  it  remained  there,  and  was  therefore  destroyed 
with  the  office.  This  is  not  a  sufficient  foundation  for  secondary 
evidence.  Wheeler  should  have  been  called  to  show  that  he  received 
and  placed  it  in  his  office,  and  that  it  was  there  at  the  time  the  office 
was  burned.  The  court  must  be  satisfied  by  sufficient  evidence,  that 
the  paper  is  destroyed  or  cannot  be  found.  Mariner  v.  Saunders,  5 
Gibu.  113,  and  cases  there  cited. 

Judgment  reversed  on  another  ground. . 


THE  CHICAGO,  KANSAS  &  NEBRASKA  RAILWAY 
COMPANY  V.  BROWN. 

44  Kan.  384.     (1890) 

Valentine,  J.  This  action  was  brought  before  a  justice  of  the 
peace  in  Pratt  county,  by  J.  H.  V.  Brown,  against  the  Chicago, 
Kansas  &  Nebraska  Railway  Company,  for  injuries  alleged  to  have 
been  received  by  the  plaintiff  through  the  negligence  of  one  of  the 
employes  of  the  railway  company. 

The  case  was  taken  to  the  District  Court  of  Pratt  County,  where 
it  was  tried  before  the  court  and  a  jury,  and  judgment  was  rendered 
in  favor  of  the  plaintiff  and  against  the  defendant  for  $109.41 ;  and 


598  Cash;s  on  Evidence 

the  defendant,  as  plaintiff  in  error  brings  the  case  to  this  court  for 
review. 

It  is  further  claimed  that  the  court  below  erred  in  permitting 
Brown,  over  the  objections  and  exceptions  of  the  defendant,  to  tes- 
tify with  regard  to  certain  "time-checks."  Brown  was  not  only  a 
section-man,  but  he  also  acted  as  the  clerk  for  the  section  foreman, 
Shanahan,  keeping  his  books,  making  out  time-checks,  etc.  One  of 
the  questions  presented  and  litigated  in  the  court  below  in  this  case, 
was  whether  the  plaintiff  was  at  the  time  of  the  accident  working 
for  the  Chicago  Kansas  &  Nebraska  Railway  Company,  or  for  the 
St.  Joseph  &  Iowa  Railroad  Company;  and  to  prove  that  he  and  all 
the  other  section-men  on  that  railroad  were  working  for  the  Chicago, 
Kansas  &  Nebraska  Railway  Company,  he  testified,  over  the  objec- 
tions and  exceptions  of  the  defendant,  that  all  the  time-checks  were 
made  out  in  the  name  of  the  Chicago,  Kansas  &  Nebraska  Rail- 
way Company,  and  this  he  testified  to  without  any  further  foundation 
for  the  introduction  of  such  testimony  than  that  he  did  not  have 
such  time-checks  in  his  possession  or  under  his  control.  No  evidence 
was  introduced  that  they  were  lost  or  destroyed,  or  that  any  search 
had  ever  been  made  for  them,  or  that  any  notice  had  been  given 
to  either  of  the  foregoing  railroad  companies,  or  to  anyone  else,  to 
produce  them.  We  think  this  was  error.  (Brock  v,  Cottingham, 
23  Kan.  383,  388,  389,  and  cases  there  cited.) 

The  judgment  of  the  court  below  will  be  reversed,  and  the  cause 
remanded  for  a  new  trial. 

All  the  Justices  concurring. 


COONROD  V.  MADDEN. 
126  Ind.  /p/.     (i8po) 


Coffey,  J.  This  was  a  suit  by  the  appellee  against  the  appellant 
upon  a  promissory  note.  Answer:  Payment.  Reply:  General  de- 
nial. Trial  by  the  court  finding  and  judgment  for  the  appellee,  over 
a  motion  for  a  new  trial  for  the  full  amount  of  the  note  with  reason- 
able attorney's  fee.  The  assignment  of  error  calls  in  question  the 
propriety  of  the  ruling  of  the  Circuit  Court  in  overruling  the  motion 
for  a  new  trial. 

On  the  trial  of  the  cause  the  appellant  introduced  and  read  in  evi- 


The  Bkst  Evidence  Rui^e  /  599 

dence  a  certain  check  executed  by  him  to  the  appellee,  and  also  tes- 
tified that  such  check  was  given  and  received  in  part  payment  of  the 
note  in  suit. 

The  appellee,  over  the  objection  of  the  appellant,  was  permitted  by 
the  court  to  testify  that  the  check  was  received  by  him  in  part  pay- 
ment of  another  and  different  note  from  the  one  in  suit,  giving  the 
date  and  amount  of  said  note,  and  its  rate  of  interest.  He  also  tes- 
tified that  the  appellant  had  paid  the  note  to  him  in  full,  and  that  it 
had  been  surrendered  to  the  appellant. 

The  objection  to  this  evidence,  stated  by  the  appellant  to  the  court 
at  the  time  of  its  introduction,  was  that  it  was  secondary,  and  that 
the  appellee  could  not  give  evidence  of  the  contents  of  such  note 
without  first  proving  its  loss,  or  serving  notice  upon  the  appellant 
to  produce  it  in  court  to  be  used  as  evidence  in  the  cause. 

It  is  undoubtedly  the  general  rule  that  before  parol  evidence  can 
be  received  of  the  contents  of  a  written  instrument,  it  must  be  shown 
that  such  instrument  is  lost  or  destroyed,  or  that  such  instrument 
is  in  the  hands  of  the  party  against  whom  the  evidence  is  offered, 
and  that  upon  proper  notice  so  to  do  he  has  failed  to  produce  the 
original  in  court  to  be  read  in  evidence.  Smith  v.  Reed,  7  Ind.  242; 
Mumford  v.  Thomas,  10  Ind.  167;  Manson  v.  Blair,  15  Ind.  242; 
Anderson,  etc.,  Co.  v.  Appiegate,  13  Ind.  339;  Frazee  v.  State,  58 
Ind.  8;  McMakin  v.  Weston,  64  Ind.  270. 

But  there  is  a  well  defined  and  well  established  exception  to  this 
general  rule.  The  general  rule  has  no  application  where  the  writ- 
ten instrument  is  merely  collateral  to  the  issue;  as  where  the  parol 
evidence  relates  to  matters  distinct  from  the  instrument  of  writing, 
although  the  same  fact  could  be  proved  or  disproved  by  the  writing. 
Wood  Practice  Evidence,  p.  4. 

In  the  case  of  Daniel  v.  Johnson,  29  Ga.  207,  it  was  held  that 
payment  might  be  proved  by  parol  to  have  been  made  in  promissory 
notes,  without  the  production  of  the  notes.  The  rule  is  that  where 
the  parol  evidence  is  as  near  the  thing  to  which  the  witness  testifies 
as  the  written  evidence,  then  each  is  primary.  Wharton  Law  of 
Evidence,  sec.  T]. 

In  this  case  had  the  note  upon  which  the  appellee  claimed  the 
check  read  in  evidence  had  been  applied,  been  produced -in  court,  the 
parties  would  have  been  as  far  from  the  real  controversy  between 
them  as  they  were  before  its  production,  namely,  the  question  as  to 
whether  the  check  was  applied  on  that  note  or  the  note  in  suit.    For 


6oo  Cases  on  Evidence 

this  reason  we  think  the  case  falls  within  the  exception  to  the  gen- 
eral rule  above  stated. 

Affirmed. 


AUSTIN  V.  GALLOWAY. 
75  W.  Va.  231.     (1913) 


Wii^UAMS,  J.  John  P.  Austin,  sheriff  of  Mason  county  and  as 
such  administrator  of  Lucy  Stallard,  deceased,  recovered  a  judg- 
ment against  John  Galloway  for  $173.46,  and  he  was  awarded  this 
writ  of  error  thereto.  The  action  was  upon  a  note  dated  i6th  of 
October,  1907,  and  payable  to  plaintiff's  intestate  one  day  after  date, 
signed  John  Galloway,  Defendant  demurred  and  pleaded  non  est 
factum  and  non  assumpsit.  The  demurrer  was  overruled  and  on 
the  issues  of  fact  the  jury  found  for  plaintiff. 

After  suit  was  brought  plaintiff's  attorney  sent  the  note  to  the 
attorney  in  Kentucky  representing  the  administrator  of  Lucy  Stallard 
in  that  state  for  the  purpose  of  proving  its  due  execution  by  defend- 
ant, by  witnesses  in  Kentucky  whose  depositions  were  to  be  taken, 
and  which  were  thereafter  taken  to  be  used  as  evidence  over  the 
objection  of  defendant,  and  this  is  assigned  as  error.  Its  loss  is 
accounted  for  by  proof  of  the  following  facts.  After  the  depositions 
were  taken  they  were  sealed  and  addressed  to  the  clerk  of  the  Cir- 
cuit Court  of  Mason  County  as  registered  mail;  but,  at  the  request 
of  the  West  Virginia  attorney,  the  note  was  not  filed  as  an  exhibit 
with  the  depositions,  and  was  mailed  to  him  in  a  separate  envelope, 
not  as  registered  matter.  That  night  the  post  office  burned,  and  all  the 
letters  were  destroyed,  except  registered  matter  which  the  postmaster 
had  placed  in  an  iron  safe.  This  is  sufficient  accounting  for  the  loss 
of  the  note  to  make  secondary  proof  admissible.  Before  sending  the 
note  to  Kentucky,  the  plaintiff's  attorney  had  made  a  copy  of  it.  His 
testimony  shows  that  the  copy  is  an  exact  copy  of  the  original.  In 
view  of  these  facts  it  was  not  error  to  admit  the  copy  of  the  note 
as  evidence.  Secondary  evidence  is  admissible  when  primary  evidence 
is  not  to  be  had.     Snyder  v.  Bridge  Co.,  65  W.  Va.  i. 

Reversed  and  remanded  on  other  grounds.  ' 


The  Best  Evidence  Rule  6oi 

REDUS  V.  MATTISON. 
30  Okla.  ^20.     (1912) 

RossER,  C.  The  defendant  in  error,  M,  M,  Mattison,  hereinafter 
called  plaintiff,  brought  this  action  against  W.  R.  Redus,  plaintiff  in 
error,  hereinafter  called  defendant,  in  the  justice  court  of  Porter  town- 
ship, Wagoner  county,  Okla.,  to  recover  an  amount  alleged  to  be 
due  him  for  getting  out  certain  stone  used  in  defendant's  building  in 
Tullahassee,  Oklahoma,  There  was  a  judgment  for  plaintiff  in  the 
justice  court.  The  defendant  appealed  to  the  County  Court  of 
Wagoner  County,  where  the  case  was  tridJ  before  a  jury,  and  there 
was  a  verdict  and  judgment  for  plaintiff  for  $63.45. 

The  defendant  assigns  as  error  the  action  of  the  court  in  permitting 
the  plaintiff  to  testify  as  to  the  contents  of  an  order  signed  by  defend- 
ant, for  certain  stone  of  the  class  known  as  "dimension  stone."  It 
was  shown  by  the  plaintiff  that  he  produced  the  written  paper  at  the 
trial  in  the  justice  court,  identified  it  and  introduced  it  in  evidence, 
and  it  was  shown  that  he  had  not  had  it  since,  and  that  he  and  his 
attorney  had  been  unable  to  find  it,  though  they  had  endeavored  to 
do  so.  Upon  this  showing,  it  was  proper  to  admit  evidence  of  its 
contents. 

The  evidence  in  the  case  is  ample  to  sustain  the  verdict,  and  there 
being  no  material  error  in  the  case  it  should  be  affirmed. 

By  the  Court :    It  is  so  ordered. 

All  the  Justices  concur. 


CORONA  KID  CO.  v.  LICHTMAN. 
84  N.  /.  L.  363.     (1912) 

Kalish,  J.  This  writ  of  error  brings  under  review  a  judgment  of 
$23,000  obtained  by  the  plaintiff  below  against  the  defendant  below,  in 
an  action  for  trover  and  conversion.  The  main  controversy  between 
the  parties  related  to  the  ownership  of  certain  portions  of  horsehides 
sent  by  the  Corona  Kid  Manufacturing  Company,  the  assignor  (for 
whose  use  the  plaintiff  sues,)  to  one  Albert  Guiges,  for  tanning. 

Another  reason  urged  upon  us  by  the  plaintiff  in  error  for  a  reversal 
of  the  judgment,  is  that  the  trial  judge,  against  the  defendant's  ob- 


6o2  Cases  on  Evidence 

jection,  permitted  the  plaintiff  to  introduce  in  evidence  certain  sheets 
of  ordinary  yellow  foolscap  which  appeared  from  the  testimony  of 
Elliott,  who  had  been  the  bookkeeper  of  Guiges  and  general  manager 
of  the  office,  to  be  copies  made  by  him  of  a  ledger  of  a  private  set  of 
books,  which  contained,  among  other  entries,  itemized  accounts  of 
the  sales  by  Guiges  to  the  defendant,  the  dates  when  made  and  the 
goods  consigned,  a  classification  of  the  articles,  the  number  of  pounds, 
the  price  per  pound  and  the  extensions.  The  object  of  this  testimony 
was  manifestly  to  establish  with  some  degree  of  certainty  the  amount 
of  goods  belonging  to  the  plaintiff,  which  came  into  the  possession  of 
the  defendant.  The  witness  Elliot  further  testified  that  he  had  per- 
sonal knowledge  of  the  consignments  recorded  in  the  ledger;  that  he 
had  made  up  and  presented  to  the  defendant  statements  of  the  item- 
ized accounts  as  they  appeared  upon  the  ledger  and  of  which  the 
yellow  sheets  were  a  true  copy  and  which  itemized  accounts  being  ex- 
amined and  checked  off  by  the  defendant  were  paid  by  him.  The 
defendant  did  not  deny  the  accuracy  of  the  itemized  accounts  pre- 
sented to  him;  nor  did  he  attempt  to  controvert  the  testimony  of  the 
witness  regarding  his,  the  defendant's  conduct,  respecting  the  same. 
When  at  the  trial,  the  defendant  was  called  upon  by  the  plaintiff  to 
produce  these  original  itemized  accounts,  he  excused  their  non-produc- 
tion upon  the  plea  that  they  had  been  lost  or  destroyed.  It  is  obvious 
that  the  defendant's  acceptance  of  the  statements  of  account  as  true 
accounts  of  the  transactions  between  him  and  Guiges,  relating  to  the 
purchase  of  the  plaintiff's  property  by  the  defendant  Guiges,  evidenced 
as  this  was  by  the  defendant  checking  off  the  items  of  the  statements 
and  paying  them,  rendered  these  statements  the  best  and  primary  evi- 
dence of  the  facts  stated  therein,  in  like  manner  as  would  have  re- 
sulted if  a  letter  had  been  written  by  the  defendant,  embracing  the 
items  of  account,  acknowledging  that  he  had  received  the  same  and 
sent  his  check  in  payment  therefor.  It  appearing  from  the  defendant's 
statement  in  court  that  the  original  itemized  statements  were  lost  or 
destroyed,  under  the  well  known  rule  of  evidence,  the  plaintiff  was  en- 
titled to  give  secondary  evidence  of  their  contents.  As  the  yellow 
sheets  were  testified  to  by  Elliott  as  being  a  true  copy  of  the  original 
itemized  accounts,  both  the  original  statements  and  the  copy  having 
been  made  by  him,  the  copy  was  admissible  as  secondary  evidence. 

The  judgment  will  he  affirmed. 


The  Best  Evidence  Rui,e  603 

MOREY  V.  HOYT. 
62  Conn.  542.     (i8ps) 

ToRRENCE,  J.  This  is  an  action  to  recover  damages  for  the  wrong- 
ful conversion  and  detention  of  personal  property.  It  was  originally 
brought  against  George  A.  Hoyt,  but  during  its  pendency  he  died  and 
his  executors  entered  to  defend. 

From  the  record  it  appears  that  Ho)^  leased  certain  land  in  Stam- 
ford in  this  state,  with  buildings  and  machinery  thereon,  to  a  New 
York  corporation  for  the  term  of  five  years  from  May  i,  1881.  This 
was  done  by  a  written  lease  in  the  ordinary  form,  executed  by  both 
parties  and  dated  the  19th  of  January,  1881. 

Hoyt  had  written  a  letter  to  his  tenant  to  the  effect  that  the  tenant 
might  make  certain  changes  and  alterations  in  and  upon  the  leased 
premises,  and  that  Hoyt  would  make  no  claim  to  any  machinery 
which  the  tenant  might  put  into  or  upon  the  same.  The  plaintiff 
called  a  witness  who  testified  that  at  a  certain  interview  between  him- 
self, Hoyt,  and  one  of  the  plaintiffs,  the  witness,  at  the  request  of 
Hoyt,  read  aloud  a  portion  of  the  letter.  He  was  then  asked  to 
state  the  part  which  he  had  read  aloud  and  in  substance  whether 
Hoyt  had  or  had  not  admitted  that  the  statements  in  such  portion  were 
true.  The  defendants  objected  to  any  oral  statements  of  the  contents 
of  the  letter,  on  the  sole  ground  that  such  evidence  was  secondary  and 
inadmissible  until  it  had  been  shown  that  the  letter  itself  could  not 
be  produced.     The  court  admitted  the  evidence. 

The  evidence  was  claimed  as  an  admission  of  the  contents  of  a  writ- 
ing by  one  whose  admissions  were  relevant.  It  was  claimed  as  primary 
and  not  secondary  evidence.  If  it  was  primary  evidence  the  objec- 
tion taken  is  not  tenable.  The  rule  that  the  oral  admissions  of  a 
party  against  himself  and  those  claiming  under  him,  although  relat- 
ing to  the  contents  of  a  writing,  are  primary  evidence,  seems  to  be 
well  established,  whatever  we  may  think  of  its  wisdom.  So  far  as 
we  are  aware  this  court  has  never  had  occasion  to  consider  this  rule, 
but  elsewhere  the  weight  of  authority  is  in  its  favor.  It  is  established 
in  England,  as  shown  by  the  authorities  cited.  "Primary  evidence 
means  the  document  itself  produced  for  the  inspection  of  the  court, 
or  an  admission  of  its  contents  proved  to  have  been  made  by  a  party 
whose  admissions  are  relevant."  Stephen's  Digest  art.  64;  Earle  v. 
Picken,  5  Car.  &  P.  542;  Slatterie  v.  Poole,  6  Mees.  &  Wels.  664; 
The  Queen  v.  Basingstoke,  14  Q.  B.  611;  i  Taylor's  Ev.  sec.  410; 


6o4  Cases  on  Evidence    ■ 

And  it  seems  to  be  the  prevalent  rule  in  this  country,  i  Greenl.  Ev. 
(i6th  ed.)  sec.  96;  Smith  v.  Palmer,  6  Cush.  513;  Loomis  v.  Wad- 
ham,  8  Gray  557;  Blackington  v.  City  of  Rockland,  66  Me.  332; 
Wolverton  v.  The  State,  16  Ohio  173;  Edgar  v.  Richardson,  33  Ohio 
Wt.  581;  Edwards  v.  Tracy,  62  Penn.  St.  374;  Taylor  v.  Peck,  21 
Gratt.  II. 

The  wisdom  of  this  rule  is  questioned  by  Judge  Taylor  in  his  work 
on  evidence  and  from  the  cases  cited  in  a  note  to  the  paragraph  from 
Greenleaf  cited  above  it  would  seem  that  the  courts  in  Ireland  dissent 
from  it,  as  do  also  the  New  York  courts.  The  weight  of  authority, 
however,  as  before  stated,  seems  to  be  in  its  favor,  and  we  see  no 
reason  why  it  should  not  be  applied  in  a  case  like  the  one  at  bar. 

New  trial  on  other  grounds. 


WISEMAN  V.  N.  P.  R.  R.  CO. 
20  Ore.  425.     (i8gi) 

On  March  19,  1890,  the  plaintiflf  J.  J.  Wiseman  commenced  an 
action  in  the  Circuit  Court  of  the  State  of  Oregon  for  the  county  of 
Multnomah,  against  the  defendant  to  recover  the  sum  of  $398.72, 
the  value  of  certain  household  goods  claimed  to  have  been  lost  by 
defendant  in  transit.  On  the  trial,  the  plaintiflf  gave  evidence  tending 
to  prove  the  issues  on  his  part  and  then  rested. 

Bean,  J.  By  section  691  Hill's  Code,  it  is  provided  that  "there 
shall  be  no  evidence  of  the  contents  of  a  writing  other  than  the  writing 
itself,  except  in  the  following  cases.     *     ♦     * 

"When  the  original  cannot  be  produced  by  the  party  by  whom  the 
evidence  is  offered,  in  a  reasonable  time,  with  proper  diligence,  and 
its  absence  is  not  owing  to  his  neglect  or  default."  This  section  is  a 
declaration  of  the  common  law  rule.  The  theory  upon  which  sec- 
ondary evidence  of  the  contents  of  a  writing  is  admissible  is  that 
the  original  writing  cannot  be  produced  by  the  party  by  whom  the 
evidence  is  offered  within  a  reasonable  time  by  the  exercise  of  rea- 
sonable diligence.  The  question  is  always  one  of  diligence  in  the 
effort  to  procure  the  original.  No  precise  rule  has  been  or  can  be 
laid  down  as  to  what  shall  be  considered  a  reasonable  effort,  but  the 
party  alleging  the  loss  or  destruction  of  the  document  is  expected  tc 
show  "that  he  has  in  good  faith  exhausted  in  a  reasonable  degree  all 


Thu  Best  Evidence  Rule  605 

the  sources  of  information  and  means  of  discovery  which  the  nature 
of  the  case  would  naturally  suggest  and  which  were  accessible  to 
him."  (i  Greenl.  on  Ev.  sec.  558;  Simpson  v,  Dall,  3  Wall.  460; 
Johnson  v.  Arnwine,  42  N.  J.  L.  451;  Kelsay  v.  Hanmer,  18  Conn. 
310.)  Thus  in  Mariner  v.  Saunders,  5  Gilm.  117,  the  court  says: 
"From  the  nature  of  the  subject,  there  is  some  difficulty  in  laying 
down  a  general  rule  defining  the  extent  and  vigilance  of  the  search 
which  a  party  must  make  before  the  court  may  conclude  that  the 
paper  is  destroyed  or  lost.  As  a  general  rule,  however,  we  may  say 
that  when,  from  the  ownership,  nature  or  object  of  a  paper  it  has 
properly  a  particular  place  of  deposit,  or  where  from  the  evidence  it 
is  shown  to  have  been  in  a  particular  place  or  in  particular  hands, 
then  that  place  must  be  searched  by  the  witness  proving  the  loss,  or 
the  person  produced  into  whose  hands  it  has  been  traced.  The  ex- 
tent of  the  search  to  be  made  in  such  place  or  by  such  person  must 
depend  in  a  great  degree  upon  the  circumstances.  Ordinarily,  it  is 
not  sufficient  that  the  paper  is  not  found  in  its  usual  place  of  deposit, 
but  all  papers  in  the  office  or  place  should  be  examined.  On  the 
whole,  the  court  must  be  satisfied  that  the  paper  is  destroyed  and 
cannot  be  found.  It  is  true,  the  party  need  not  search  every  possible 
place  where  it  might  be  found,  for  then  the  search  might  be  inter- 
minable, but  he  must  search  every  place  where  there  is  a  reasonable 
probability  that  it  may  be  found."  This  rule  is  founded  on  reason 
and  justice,  and  to  require  any  less  degree  of  diligence  would  be  to 
defeat  the  object  of  reducing  agreements  to  writing.  As  was  said  in 
Rankin  v.  Crow,  19  111.  629:  "The  party  wishing  to  avail  himself  of 
the  benefit  of  such  secondary  evidence  should  be  required  to  make 
at  least  the  same  effort  that  it  is  expected  the  party  would  make  if 
he  were  to  lose  the  benefit  of  the  evidence  if  the  instrument  were 
not  found." 

The  degree  of  diligence  which  shall  be  considered  necessary,  in  any 
case  will  depend  upon  the  character  and  importance  of  the  document, 
the  purposes  for  which  it  is  expected  to  be  used,  and  the  place  where 
a  paper  of  that  kind  may  naturally  be  supposed  to  be  found.  If  the 
document  be  a  valuable  and  important  one,  which  the  owner  would 
be  likely  to  preserve,  a  more  diligent  search  will  be  required  than  if 
the  document  is  of  little  or  no  value.  The  purposes  for  which  it  is 
proposed  to  use  it  on  the  trial  will  also  have  an  important  bearing  in 
determining  the  degree  of  diligence  required.  If  the  cause  of  action 
or  defense  is  founded  on  the  supposed  writing,  the  party  offering  the 
evidence  will  be  required  to  show  a  greater  degree  of  diligence  in 


6o6  Casks  on  Evidence 

the  attempt  to  produce  the  original  than  if  it  is  desired  to  be  used  as 
proof  in  some  collateral  matter.  The  proof  of  search  and  proof  of 
loss  required  is  always  proportionate  to  the  character  and  value  of 
the  paper  supposed  to  be  lost.  (American  Life  Ins.  Co.  v.  Rosen- 
agle,  Tj  Pa.  St.  507.) 

The  existence  and  contents  of  the  supposed  contract,  as  well  as  the 
claim  of  defendant  based  upon  it,  is  denied  by  the  plaintiff  in  the  case 
at  bar.  The  issue  thus  being  joined,  its  execution  and  contents  were 
very  material  to  defendant  in  establishing  its  defense.  Indeed,  de- 
fendant seeks  to  exempt  itself  from  liability  solely  by  reason  of  this 
contract. 

The  fact  that  the  person  to  whose  possession  the  paper  was  traced 
resided  out  of  the  state,  did  not  excuse  defendant  from  a  diligent 
effort  to  procure  it. 

Judgment  of  the  court  below  is  therefore  affirmed. 


THE  PEOPLE  v.  HENKLE. 
256  III  584.    (1912) 

Farmer,  J.  In  the  year  191 1  the  school  directors  of  district  No. 
155  levied  a  school  tax  for  educational  purposes  of  $1.50  on  the  $100 
valuation  which  was  extended  against  the  property  lying  in  said  high 
school  district.  In  the  same  year  the  board  of  education  of  the  high 
school  levied  a  tax  of  $7,000  for  educational  purposes  and  $16,000 
for  building  purposes,  which  was  extended  against  all  the  property 
embraced  in  the  high  school  district,  including  the  portion  of  district 
No.  155  which  lies  in  the  township  high  school  district. 

Three  objections  are  urged  to  the  validity  of  the  tax  levied  by  the 
board  of  education  of  the  high  school  district. 

The  second  objection  is,  that  the  building  tax  was  illegal  and  void 
because  no  authority  had  been  given  the  board  of  education  to  erect 
a  building  at  any  election  called  for  that  purpose  where  the  statutory 
notice  required  for  such  election  had  been  given.  The  record  of  the 
board  of  education  showed  that  on  June  8,  1909,  an  election  was 
ordered  to  be  held  on  June  19,  1909,  for  the  purpose  of  voting  on 
the  question  of  building  a  township  high  school  building,  and  the 
secretary  was  instructed  to  post  notices  of  said  election  in  the  man- 
ner required  by  law.     It  was  shown  by  the  poll-books  of  said  elec- 


The  Best  Evidence  Rule  607 

tion  that  on  that  date  230  votes  were  cast  for  building  a  township 
high  school  and  five  against  it.  The  records  of  the  board  do  not 
show  that  notice  of  the  election  had  been  given  as  required  by  stat- 
ute, and  appellant  contends  that  this  was  fatal  to  the  validity  of  the 
levy  for  building  purposes.  A  printed  copy  of  the  notice  of  the  elec- 
tion was  offered  in  evidence,  and  members  of  the  board  testified  the 
notice  was  posted  in  three  of  the  most  public  places  in  the  district, 
as  required  by  law.  It  was  also  shown  that  a  copy  of  the  notice, 
with  the  certificate  of  the  secretary  of  the  board  of  its  having  been 
posted  ten  days  prior  to  the  election,  had  been  among  the  records 
of  the  board  and  was  used  in  evidence  and  made  an  exhibit  in 
former  litigation  in  which  the  high  school  district  was  involved,  but 
the  certificate  of  posting  could  not  be  found.  It  was  competent  to 
prove  the  loss  of  the  certificate  of  posting,  and  the  fact  that  the  notice 
had  been  posted,  by  parol  evidence,  and  the  uncontradicted  testimony 
showed  that  the  notice  had  been  posted  in  the  manner  required  by  law. 
(i  Elliott  on  Evidence,  sec.  216,  15  Cyc.  326.) 

Judgment  affirmed. 


RISHER  v.  MADSEN. 
94  Neb.  72.     (1913) 


Sedgwick,  J.  The  plaintiff  brought  this  action  in  ejectment  in  the 
District  Court  for  Douglas  County  to  recover  the  possession  of  five 
lots  in  block  74,  in  Denson,  an  addition  to  the  city  01  Omaha.  The 
answer  was  a  general  denial.  The  trial  resulted  in  a  verdict  and 
judgment  for  the  defendant,  and  the  plaintiflF  has  appealed. 

Mrs.  Risher  testified  that  in  1901  she  received  a  letter  from  the 
defendant ;  that  it  came  by  mail  in  the  usual  way ;  that  she  had  made 
diligent  search  for  the  letter  and  was  unable  to  find  it ;  that  she  knew 
by  whom  it  was  signed,  and  that  the  defendant's  signature  appeared 
on  the  letter ;  and  that  she  was  able  to  state  the  contents  of  the  letter. 
This  she  was  asked  to  do,  but,  upon  objection,  her  evidence  was  ex- 
cluded. This  evidence  was  apparently  excluded  on  the  ground  that 
Mrs.  Risher  was  not  in  position  to  know  the  signature  of  the  defend- 
ant, but  she  testified  positively  that  she  did  know  his  signature,  and 
there  was  no  attempt  to  cross-examine  her  as  to  her  means  of  knowl- 


6o8  Cases  on  Evidence 

edge,  and  in  the  absence  of  such  cross-examination  we  think  the  evi- 
dence should  have  been  admitted. 

Reversed. 


POST  V.  LELAND. 
184  Mass.  601.     (1903) 


Lathrop,  J.  This  was  an  action  of  contract  under  the  St.  of  1890, 
c.  437,  against  brokers,  to  recover  various  sums  of  money  paid  by 
the  plaintiff  to  the  defendants  as  margin  for  the  purchase  of  certain 
securities  bought  and  afterwards  sold  by  the  defendants.  The  case 
was  sent  to  an  auditor  who  found  for  the  defendants.  It  was  after- 
wards tried  in  the  Superior  Court  before  a  jury.  A  verdict  was  re- 
turned for  the  defendants,  and  the  case  is  before  us  on  the  plaintiff's 
exceptions  to  the  exclusion  of  evidence,  and  to  the  refusal  to  give  cer- 
tain instructions  requested.     We  will  consider  these  in  their  order. 

The  first  exception  relates  to  the  refusal  of  the  judge  to  admit 
secondary  evidence  of  the  contents  of  letters  from  the  defendants 
to  the  plaintiff.  The  plaintiff  testified  in  the  first  place  that  he  had 
received  letters,  but  that  they  might  be  lost,  he  did  not  know.  Then 
he  testified  that  he  had  not  any  letters,  which  he  subsequently  qualified 
by  saying:  "We  did  not  bring  the  letters  here."  There  was  no  at- 
tempt to  show  that  any  search  had  been  made  for  the  letters  or  that 
they  were  lost,  and  the  judge  rightly  excluded  secondary  evidence  of 
their  contents. 

Exceptions  overruled. 


FEDERAL  CHEMICAL   CO.  v.  JENNINGS. 

112  Miss.  514.     (1916) 

Cook,  P.  J.  This  is  a  suit  on  an  open  account.  Appellee,  in  this 
case,  entered  into  a  written  contract  with  appellant  to  act  as  its  agent 
at  Hebberville,  Ky.  By  the  terms  of  this  contract  appellant  shipped 
to  appellee,  upon  his  order,  three  tons  of  fertilizer.  The  contract 
provided  that  appellee  was  to  sell  this  fertilizer  to  the  farmers  of 


The  Best  Evidence  Rui,e  609 

his  vicinity,  and  when  sold  on  time  he  agreed  to  take  the  purchaser's 
notes  and  indorse  the  same  to  the  appellant.  The  contract  provides 
for  reports,  discounts,  etc.  The  record  further  shows  that  appellee, 
before  he  sold  the  balance  of  the  fertilizer,  had  a  fire,  and  therefore 
wanted  to  cancel  his  contract,  and  deliver  the  fertilizer  on  hand  to 
appellant,  or  some  substituted  agent  of  appellant.  There  is  evidence 
that  some  correspondence  was  had  on  this  subject. 

There  is  no  possible  doubt  that  appellant  should  have  recovered 
judgment  in  this  case  but  for  the  incompetent  testimony  which  the 
court,  over  the  objections  of  appellant,  permitted  to  go  to  the  jury. 

Appellee,  defendant  below,  contended  that  he  had  been  released 
by  appellant.  He  testified  that  this  release  was  made  by  letter;  that 
the  letter  was  in  his  desk  in  Kentucky.  Appellant  objected  to  this 
testimony  for  obvious  reasons.  The  court,  however,  overruled  the  ob- 
jection, stating,  "I  could  not  by  any  manner  or  means  control  a  paper 
that  is  in  Kentucky."  It  seemed  to  have  been  the  court's  opinion  that 
oral  evidence  of  the  contents  of  a  writing  could  be  given,  when  it 
appeared  that  the  writing  was  without  the  territorial  jurisdiction  of 
the  trial  court.  It  will  be  observed  that  there  was  no  efifort  to  prove 
that  the  letter  was  lost,  destroyed,  or  misplaced;  and  if  lost,  or  mis- 
laid, there  was  no  effort  made  to  show  that  it  could  not  be  found 
after  a  diligent  search,  but  on  the  contrary,  the  location  of  the  letter 
was  fixed.  Later  on  the  objection  was  renewed  and  again  overruled, 
the  judge  remarking,  "It  is  out  of  the  jurisdiction  of  the  court."  So 
far  as  our  investigations  lead,  this  ruhng  of  the  trial  judge  was  unique 
and  announces  a  brand  new  rule  of  evidence.  We  find  ourselves 
unable  to  go  with  the  judge,  and  must  decline  to  indorse  his  reasoning. 

Reversed  and  remanded. 


SMITH  v.  BROWN. 
75/  Mass.  238.     (1890) 


Contract  on  a  judgment.  At  the  trial  in  the  Superior  Court,  before 
Blodgett,  J.,  the  jury  returned  a  verdict  for  the  plaintiff;  and  the 
first  named  defendant  alleged  exceptions. 

DevEns,  J.  At  the  trial,  the  plaintiff  put  in  evidence  the  record  of 
a  judgment  such  as  that  declared  on,  recovered  by  him  against  Brown 
and  Griffiths  in  New  York,  and  called  Shaver,  who  was  a  member 


6io  Cases  on  Evidence 

of  the  bar  of  New  York  who  produced  a  press  copy  of  an  alleged 
assignment  of  the  judgment  to  Brown  and  Griffiths,  dated  February 
3,  1887,  having  previously  testified  that  he  had  last  seen  the  original 
in  February,  1881,  and  that  the  same  was  lost. 

The  defendant  excepted  to  the  admission  of  the  press  copy  produced 
by  Shafer,  upon  the  ground  that  it  was  not  competent  evidence  to 
prove  the  assignment  of  the  plaintiff's  judgment.  He  contends  that 
a  more  satisfactory  kind  of  secondary  evidence  existed,  known  to  the 
plaintiff  before  the  trial,  and  that  no  evidence  was  given  that  a  search 
had  been  made  for  the  assignment  alleged  to  have  been  lost,  and 
therefore  that  the  evidence  was  inadmissible.  We  understand  that 
the  first  of  these  objections  refers  to  the  formal  assignment  filed  in  the 
court ;  but  the  testimony  of  Shafer,  who  is  a  lawyer,  afforded  evidence 
that  might  well  satisfy  the  judge  that  this  could  not  be  taken  from 
the  files  of  the  court,  and  it  was  also  but  a  second  assignment,  which 
would  have  been  inoperative  had  the  first  been  really  made,  although 
it  might  have  furnished  evidence  for  the  files  of  the  court  of  the 
transfer.  If  there  are  several  sources  of  information  of  the  same  fact, 
it  is  not  ordinarily  necessary  to  show  that  all  have  been  exhausted  be- 
fore secondary  evidence  can  be  resorted  to.  i  Greenl.  Ev.  sec.  84. 
It  was  sufficient  to  prove  the  loss  of  the  instrument  upon  which  the 
plaintiff  relied ;  this  being  done,  he  was  entitled  to  prove  its  contents 
by  the  secondary  evidence  of  a  press  copy.  Goodrich  v.  Weston,  102 
Mass.  362.  Whether  there  was  sufficient  evidence  of  the  loss  of  the 
assignment  of  which  secondary  evidence  was  admitted,  was  a  ques- 
tion of  fact  for  the  presiding  judge.  Unless  his  finding  was  based 
upon  an  error  of  law,  or  upon  evidence  which,  as  matter  of  law,  was 
insufficient  to  sustain  the  finding,  it  would  not  be  here  open  to  revision. 
Brigham  v.  Coburn,  10  Gray  329,  331.  Commonwealth  v.  Morrell, 
99  Mass.  542.  Walker  v.  Curtis,  116  Mass.  98.  The  evidence  of 
Shafer  was  positive  as  to  the  losses  of  the  assignment.  He  did  not 
expressly  testify  that  he  had  made  search,  but  this  is  implied  from  his 
statement.  The  defendant  did  not  see  fit  to  cross-examine  upon  this 
point,  and  there  is  no  rule  which  requires  that  there  should  be  affirma- 
tive evidence  of  a  search  under  such  circumstances.  If  satisfied 
to  give  credit  to  the  witness,  the  judge  was  authorized  to  hold  the  loss 
of  the  instrument  sufficiently  proved,  and  then  to  admit  the  secondary 
evidence  of  the  press  copy. 

Exceptions  overruled. 


The  Best  Evidence  RueE  6ii 

KING  V.  RANDLETT. 
33  Cal.  318.     (1867) 

This  was  an  action  to  recover  the  possession  of  two  and  one-half 
undivided  sixteenth  shares  of  the  Independent  Tunnel  Mining  Claims 
in  Plader  county.  The  plaintiff,  in  the  complaint,  alleged  title  in 
himself,  and  an  ouster  by  the  defendant.  The  plaintiff,  in  the  state- 
ment of  his  cause  at  the  commencement  of  the  trial,  stated  his  title 
to  the  demanded  premises  to  be  derived  by  purchase  by  deed  or  bill 
of  sale.  The  plaintiff  stated,  as  a  witness  in  his  own  behalf,  that 
the  deed  or  bill  of  sale  was  lost,  and,  under  the  objection  and  excep- 
tion of  the  defendant,  gave  testimony  of  its  contents. 

The  testimony  of  the  witness,  Deiner,  was  offered  to  show  title  to 
the  demanded  property  in  the  plaintiff;  the  defendant  objected  to  its 
introduction,  on  the  grounds  of  incompetency  and  irrelevancy,  and 
excepted  to  its  admission. 

Sanderson,  J.  The  plaintiff  having  obtained  his  alleged  interest 
in  the  Independent  Tunnel  Company's  claim  by  purchase,  which  pur- 
chase was  evidenced  by  a  bill  of  sale  or  deed,  was  bound  to  produce 
his  deed  or  bill  of  sale,  for  the  purpose  of  proving  his  title — ^that 
being  the  best  evidence — or  prove  its  loss  for  the  purpose  of  laying 
a  foundation  for  the  introduction  of  secondary  evidence  as  to  its 
contents.  (Patterson  v.  Keystone  Mining  Company,  30  Cal.  365.) 
The  evidence-of  the  loss  was  insufficient.  It  showed  that  in  all  proba- 
bility the  bill  of  sale  was  left  in  the  plaintiff's  store  at  Yorkville  at 
the  time  the  plaintiff  sold  out  and  delivered  possession  of  the  store 
and  its  contents  to  his  nephew.  His  nephew,  at  the  time  of  the  trial, 
was  in  the  county  and  in  reach  of  the  process  of  the  court,  yet  he 
was  neither  called  as  a  witness  as  to  what  had  become  of  the  bill  of 
sale,  nor  does  it  appear,  that  he  was  ever  questioned  by  the  plaintiff 
touching  the  missing  document.  It  is  true  that  the  plaintiff  searched 
the  store  about  a  year  after  the  nephew  took  possession,  but  that  was 
not  sufficient.  Under  the  circumstances  detailed  by  the  plaintiff, 
which  are  very  similar  to  those  presented  in  the  case  just  cited,  in- 
quiry should  have  been  made  of  the  nephew  for  the  missing  docu- 
ment in  order  to  sufficiently  establish  its  loss.  It  does  not  appear 
that  any  search  was  made  for  the  purpose  of  this  trial. 

Judgment  reversed  and  a  new  trial  ordered. 


6i2  Cases  on  Evidence 

MATHES  V.  LUiMBER  CO. 
173  Mo.  Ap.  239.    (1913) 

Farrington,  J.  The  plaintiff  recovered  judgment  against  the  de- 
fendant for  the  sum  of  $668.40  in  a  suit  instituted  in  Stone  county 
and  afterwards  removed  on  change  of  venue  to  Lawrence  county. 

Plaintiff  offered  testimony  to  show  the  acts,  declarations  and  con- 
duct of  the  unknown  insj^ector  in  order  to  prove  that  he  was  an  agent 
of  the  defendant.  Plaintiff  also  offered  evidence,  which  was  ad- 
mitted by  the  trial  court,  to  show  that  the  shipper  or  his  agent, 
under  the  rule  of  the  railroad  company,  must  sign  before  the  railroad 
company  will  bill  the  cars  out,  and  that  this  unknown  inspector  signed 
the  name  of  the  Switzer  Lumber  Company  and  took  the  numbers 
of  the  cars,  and  that  the  ties  were  shipped.  The  plaintiff  testified 
that  the  ties  were  billed  out  to  the  Great  Western  Railroad  Com- 
pany. The  railroad  agent  testified  that  it  is  the  custom  of  railroad 
companies  that  buy  ties  to  send  their  inspector  at  the  time  the  ties 
are  loaded  for  the  purpose  of  making  an  inspection.  No  offer  of  the 
bills  of  lading  was  made  by  the  plaintiff,  nor  was  there  any  showing 
that  plaintiff  was  unable  to  procure  the  originals  or  copies  of  the 
bills  of  lading  in  these  shipments.  Neither  was  the  printed  rule  of 
the  railroad  company,  which  the  railroad  agent  testified  to  with  ref- 
erence to  the  shipper  or  his  agent  signing,  offered  by  the  plaintiff,  nor 
was  there  a  showing  made  that  plaintiff  was  unable  to  procure  the 
printed  rule  for  use  as  evidence.  There  was  no  evidence  offered  to 
show  that  the  defendant  knew  the  unknown  inspector  was  represent- 
ing it  on  this  or  any  other  occasion,  before  or  after;  it  was  the  first 
dealing  the  plaintiff  ever  had  with  the  alleged  agent  or  with  the  de- 
fendant. 

Appellant  assigns  as  error  the  action  of  the  trial  court  in  permit- 
ting the  contents  of  the  bills  of  lading  to  be  shown  by  the  oral 
testimony  of  the  man  who  was  the  agent  of  the  railroad  company 
at  the  time  the  cars  are  alleged  to  have  been  shipped  out,  and  also 
the  action  of  the  trial  court  in  permitting  this  agent  to  testify  con- 
cerning the  contents  of  the  printed  rule  of  the  railroad  company 
to  the  effect  that  the  company  requires  the  shipper  or  his  agent  to 
sign  before  the  cars  are  shipped. 

This  contention  is  well  made  for  the  reason  that  there  is  no  show- 
ing whatever  that  the  bills  of  lading  and  the  printed  rule  of  the  rail- 
road company  were  lost  or  that  it  was  beyond  the  power  of  the  plain- 


The  Best  Evidence  Rui^e  .     613 

tiff  to  produce  them;  in  fact,  there  is  nothing  in  the  record  to  show 
any  effort  on  the  part  of  the  plaintiff  to  obtain  them  for  use  at  the 
trial.  The  contents  of  a  writing  that  is  unaccounted  for  cannot  be 
shown  by  oral  testimony  (Morton  v.  Heidorn,  135  Mo.  609;  City  of 
St.  Louis  V.  Arnot,  94  Mo.  275 ;  Merrill  Chem.  Co.  v.  Nickells,  66 
Mo.  App.  I,  c.  692;  Houck  V.  Patty,  too  Mo.  App.  302.) 

Appellant  insists  that  there  is  no  competent  evidence  in  this  record 
showing  that  there  was  anyone  representing  it  at  the  time  the  ship- 
ment was  made  who  could  bind  it  for  the  1671  ties  or  any  proceeds 
or  benefits  from  them,  or  that  it  in  any  way  ratified  the  acts  of  the 
person  or  persons  who  converted  these  ties  that  belonged  to  the 
plaintiff. 

It  is  shown  that  a  copy  of  the  letter  written  by  the  appellant  to 
the  respondent  on  October  7,  1909,  together  with  a  copy  of  the  letter 
which  appellant  had  previously  received  from  respondent,  was  sent 
by  appellant  to  Wolf  but  this  in  no  way  shows  that  Wolf  was  ap- 
pellant's agent.  The  natural  and  probable  course  for  appellant  to 
pursue,  having  purchased  the  5,000  ties  from  Wolf  and  afterwards 
being  informed  that  some  ties  had  been  converted  belonging  to  the 
man  from  whom  the  5,000  were  purchased  by  Wolf,  and  it  appear- 
ing that  this  man  was  charging  appellant  with  the  wrongful  taking, 
would  be  for  appellant  to  immediately  convey  the  full  particulars  to 
its  vendor. 

The  record  wholly  fails  to  establish  an  agency  or  ratification. 
Entertaining  this  view,  we  must  hold  that  the  Trial  Court  erred  in  ad- 
mitting the  testimony  herein  alluded  to,  and  in  refusing  to  give  de- 
fendant's peremptory  instruction.  The  judgment  is  reversed  and 
the  cause  remanded  for  a  new  trial. 

All  concur. 


HOBLIT  V.  HOWSER. 
iji  111.  App.  ip.     (191 2) 


Philbrick,  J.  The  only  question  at  issue  in  this  case,  being  one 
of  fact,  is  whether  or  not  the  appellant  Hoblit  had  either  actual  or 
constructive  notice,  such  as  would  have  put  him  upon  inquiry  of  this 
mortgage;  and  if  he  had  then  he  is  bound  thereby.  Watkins  tes- 
tified  that   the   entire  transaction  between   Hoblit   and   himself   was 


6i4  Cases  on  Evidence 

carried  on  by  correspondence,  that  in  the  letters  written  by  Watkins 
to  Hoblit  he  notified  Hoblit  of  the  existence  of  this  indebtedness  to 
Howser  and  notified  him  that  this  mortgage  was  made  to  secure  that 
indebtedness  and  that  it  was  a  lien  upon  these  premises.  Hoblit  does 
not  deny  the  carrying  on  of  these  negotiations  by  correspondence, 
but  denies  that  any  such  notice  was  given  him  by  Watkins.  The 
deposition  of  Watkins  was  taken  in  California  and  read  in  the  trial, 
and  in  that  deposition  the  contents,  or  substance  of  the  contents  of 
the  letters  which  passed  between  Watkins  and  HobHt  was  testified 
to  by  Watkins ;  and  it  is  insisted  by  appellant  that  no  sufficient  founda- 
tion was  laid  for  the  introduction  of  this  testimony  on  the  part  of 
Watkins.  The  record  discloses,  however,  that  Watkins  had  either 
destroyed  or  had  mislaid  all  of  these  letters,  that  he  never  had  any 
supposition  or  knowledge  that  they  would  ever  be  of  any  value  or 
that  there  would  ever  be  any  necessity  for  their  use,  and  that  they 
were  destroyed  in  the  natural  course  of  business  after  the  transaction 
was  closed,  that  he  had  made  diligent  search  in  the  places  where 
such  letters  were  usually  kept  or  would  usually  be  found,  that  he  has 
no  knowledge  of  the  existence  or  whereabouts  of  the  letters  now,  and 
that  he  is  unable  to  find  or  produce  them.  This  preliminary  proof 
made  by  complainant  was  sufficient  to  authorize  the  admission  of 
secondary  evidence  of  the  contents  of  these  letters,  and  the  court 
did  not  err  in  admitting  it. 

Decree  affirmed. 


PRUSSING  V.  JACKSON. 
208  III.  85.     (1904) 


BoGGS,  J.  This  was  an  action  for  libel,  against  the  plaintiff  in 
error  by  the  defendant  in  error.  The  declaration  charged  that  the 
plaintiflF  in  error  composed  and  caused  to  be  published  in  the  Chicago 
Times-Herald,  a  daily  newspaper  pubHshed  in  the  city  of  Chicago,  a 
certain  false,  scandalous,  defamatory  and  libelous  article,  set  forth 
in  haec  verba,  with  appropriate  innuendoes,  in  the  declaration. 

The  plaintiff  in  error  filed  the  plea  of  not  guilty,  and  the  cause  was 
submitted  for  trial  before  the  court  and  a  jury.  The  jury  returned  a 
general  verdict  finding  the  plaintiff  in  error  to  be  guilty  and  assess- 
ing the  damages  of  defendant  in  error  at  the  sum  of  $20,000. 


Thb  Best  Evidence  Rui,e  615 

We  think,  'however,  the  plaintiff  in"  error  has  lawful  right  to  com- 
plain of  an  erroneous  ruling  of  the  court  as  to  the  admissibility  of 
evidence.  It  was  sought  to  maintain  the  action  against  the  plaintiff 
in  error  as  the  author  of  the  alleged  libelous  publication  which  ap- 
peared in  the  Chicago  Times-Herald.  He  was  in  nowise  connected 
with  the  management,  control  or  publication  of  the  newspaper  and  had 
no  interest  therein.  The  action  was  against  him  on  the  alleged 
ground  that  he  was  the  author  of  a  statement,  in  the  form  of  a  letter 
which  appeared  as  a  part  of  the  publication,  and  that  he  had  given  or 
permitted  one  Varian,  a  reporter  of  the  newspaper,  to  take,  the  letter 
under  such  circumsances  as  that  he  should  be  held  to  have  procured 
it  to  be  published.    The  cause  was  tried  before  the  court  and  a  jury. 

We  think  the  objection  preferred  by  counsel  for  the  plaintiff  in 
error  called  upon  the  court  to  rule  whether  the  printed  publication 
was  admissible  in  evidence  without  the  production  of  the  writing 
of  which  the  plaintiff  in  error  was  the  author  and  which  it  was  as- 
serted had  been  reproduced  in  the  printed  article,  and  which,  so  re- 
produced, constituted  the  alleged  libel. 

The  rule  is,  in  order  to  let  in  secondary  evidence  of  the  contents  of 
a  written  instrument  the  person  in  whose  possession  it  was  lost  must 
be  produced  unless  shown  to  be  impossible,  in  which  case  search 
among  his  papers  must  be  proved,  if  that  can  be  done.  In  all  events 
search  must  be  made  for  the  paper  with  the  utmost  good  faith,  and 
be  as  thorough  and  vigilant  as  if  the  rule  were  that  all  benefit  of  the 
paper  would  be  lost  unless  it  be  found.  Mariner  v.  Saunders,  5  Gilm. 
113;  Sturge  V.  Hart,  45  111.  103;  Chicago  and  Northwestern  Railway 
Co.  V.  Ingersoll,  65  id.  399;  Williams  v.  Case,  79  id.  356;  4  111.  Cyc. 

Dig-  PP-  524,  526,  527- 

In  Clifford  v.  Drake,  no  111.  135,  the  notes  made  by  a  reporter  of 
a  newspaper  of  the  conversation  had  with  the  defendant,  and  the  article 
prepared  by  the  reporter,  from  the  notes,  for  publication,  were  held 
to  be  primary  evidence,  and  the  rule  was  there  recognized  that  the 
printed  article  was  secondary  evidence,  and  was  competent  to  be  re- 
ceived in  evidence  only  after  proof  had  been  made  excusing  the  pro- 
duction of  the  primary  evidence.  We  think  this  rule  has  the  support 
of  the  greater  weight  of  authority.  In  18  American  and  English 
Encyclopedia  of  Law  (2nd  ed.  p.  1076)  the  rule  deducible  from  the 
authorities  is  stated  as  follows :  "In  an  action  for  libel  the  publication 
itself  is,  of  course  the  best  evidence  of  the  charges  made  in  it,  and  the 
original  document  containing  the  defamatory  matter  must  be  pro- 
duced, if  possible;  but  where  the  original  has  been  destroyed  or  lost 


6i6  Cases  on  Evidence 

beyond  a  reasonable  hope  of  finding  it,  or  is  in  the  hands  of  an  ad- 
verse party  who  refuses  to  produce,  secondary  evidence  of  the  con- 
tents is  admissible." 

Reversed  and  remanded. 


BOWLAND  V.  McDonald.  ' 

82  Kan.  84.     (19 10) 

Porter,  J.  The  plaintiff  brought  this  action  in  forcible  detainer, 
alleging  that  he  is  the  owner  of  lands  in  Rawlins  county,  consisting 
of  240  acres,  and  that  the  defendant  unlawfully  and  forcibly  keeps 
him  out  of  the  possession  of  a  strip  of  land  seven  feet  wide  along  the 
north  side  thereof.  The  defendant  is  a  Kansas  corporation,  engaged 
in  conducting  a  telephone  business,  and  claims  that  the  strip  of  land 
in  question  is  a  part  of  a  public  highway,  and  that  it  has  a  right  to 
place  its  telephone  poles  there  so  long  as  the  same  do  not  materially 
interfere  with  public  travel.  The  case  was  tried  to  a  jury,  and  at 
the  close  of  the  evidence  the  court  instructed  a  verdict  for  the  plain- 
tiff. Judgment  was  rendered  upon  the  verdict,  and  the  defendant 
appeals. 

The  record  of  Rawlins  county,  including  the  road  records,  were  de- 
stroyed by  fire  December  5,  1905.  The  defendant,  therefore,  sought 
by  secondary  evidence  to  show  that  from  1886  a  sixty- foot  road  had 
been  established  along  this  line.  The  principal  claim  of  error  is 
that  the  court  ruled  out  its  evidence  offered  for  that  purpose.  The 
defendant  first  offered  in  evidence  what  is  known  as  the  George  A. 
Ogle  atlas  of  Rawlins  county,  containing  a  plat  of  the  township  where 
the  land  in  controversy  is  located  showing  this  road  to  be  sixty  feet 
wide,  and  also  offered  to  prove  by  the  person  who  claimed  to  have 
made  the  plat  for  the  publishers  of  the  atlas  that  he  made  it  from 
the  original  road  records  before  they  were  destroyed.  An  objection 
to  the  evidence  was  sustained.  The  defendant  also  offered  evidence 
for  the  purpose  of  showing  that  this  road  sixty  feet  in  width  had 
been  worked  at  the  public  expense  long  prior  to  1897  and  had  been 
traveled  by  the  public  since  the  year  1886;  and  then  contended  that, 
having  proved  this  condition  there  is  a  presumption  that  the  road 
overseer  of  that  district  as  well  as  the  county  clerk  had  performed 
their  several  duties  under  the  act  of  1897.    The  court  refused  to  per- 


The  Best  Evidence  Ruee  617 

mit  the  proof.  It  was  manifest  error  to  exclude  the  testimony.  The 
destruction  of  the  road  record  of  the  county  having  been  shown,  the 
evidence  offered  by  the  defendant  for  the  purpose  of  proving  the 
existence  of  a  sixty- foot  road  was  clearly  the  best  evidence  that  could 
be  obtained. 

For  the  error  in  excluding  the  testimony  offered  the  judgment  is 
reversed  and  the  cause  remanded  for  another  trial. 


SMITH,  CAREY  &  CO.  v.  LIVE  STOCK  CO. 
g2  Kan.  5.     (19 14) 

Smith,  J.  The  principal  ground  of  error  urged  on  the  rehearing 
is  the  admission  over  appellant's  objection  of  the  affidavit  and  tes- 
timony of  William  McDermott,  intervener,  as  to  the  contents  of  a 
letter  written  by  him  to  E.  D.  Small  in  reply  to  an  apphcation  for  the 
original  loan  of  $10,000;  the  contention  on  the  part  of  the  appellant 
being  that  the  loan  was  made  to  the  Small  brothers,  and  that  the 
name  of  the  Atchison  Live  Stock  Company  as  indorsed  on  the  back 
of  the  note  by  one  of  the  Small  brothers,  as  manager  of  the  Atchison 
Live  Stock  Company  as  security.  On  the  other  hand,  the  appellee 
contends  that  the  loan  was  made  to  the  Atchison  Live  Stock  Company 
and  the  note  was  secured  by  the  Small  brothers,  individually,  as 
securities. 

The  letter  of  E.  D.  Small,  one  of  the  partners  and  an  officer  of  the 
Atchison  Live  Stock  Company,  applying  for  the  loan,  and  the  reply 
of  Mr.  McDermott  thereto  constituted  the  contract  antecedent  to  the 
execution  of  the  note  for  the  loan.  This  letter  was  produced  in  evi- 
dence and  was  clearly  an  application  of  the  Small  brothers  for  the 
loan.  McDermott's  contention  is  that  in  his  letter,  replying  to  the 
application,  he  proposed  to  make  the  loan  to  the  Atchison  Live  Stock 
Company  and  that  the  loan  was  consummated  in  accordance  therewith 
to  the  corporation.  It  is  conceded  that  the  note  for  the  loan  was 
signed  on  the  face  by  the  individual  members  of  the  firm  of  Small 
Brothers  and  was  indorsed  on  the  back,  "Atchison  Live  Stock  Com- 
pany, by  J.  D.  Small,  Mgr." 

After  procuring  an  order  for  the  inspection  of  the  books,  papers, 
etc.,  as  indicated  in  the  former  decision,  the  appellee  took  the  depo- 
sition of  E.  D,   Small,  in  the   State  of  California,  to  which  place 


6i8  Cases  on  Evidence 

Small  had  removed.  Neither  the  plaintiff  nor  the  receiver  appeared 
at  the  taking  of  the  deposition,  but  on  the  trial  made  full  objections 
to  each  question  and  answer  as  incompetent,  immaterial  and  irrelevant, 
which  objections  were  overruled. 

Xo  evidence  was  given  by  the  witness  in  his  deposition  nor  was 
he  asked  whether  he  had  made  any  search  for  the  letter  or  made 
any  attempt  to  find  it  or  when  or  where  he  last  had  it  or  saw  it. 

Relying  upon  this  proof  of  the  loss  of  the  letter,  the  intervener 
was  allowed,  over  the  objection  of  the  appellant,  to  introduce  his 
affidavit  setting  forth,  from  recollection,  a  copy  of  his  letter.  He  also 
went  upon  the  witness  stand  and  testified  orally,  in  substance,  to  the 
same  effect.  The  appellant  objected  and  excepted  on  the  ground 
that  it  was  secondary  evidence  and  that  no  proper  foundation  had 
been  laid  that  the  primary  evidence  could  not  have  been  procured, 
and  that  there  was  no  evidence  that  the  original  evidence  was  either 
lost  beyond  recovery  or  was  destroyed.  The  objection  should  have 
been  sustained. 
The  judgment  is  reversed  and  the  case  is  remanded  for  a  new  trial. 


HARBISON-WALKER  REFRACTORIES  CO.  v.  SCOTT. 
« 

,  i8^  Ala.  641.     (1914) 

Action  by  Dixie  Davis  Scott  against  the  Harbison-Walker  Refrac- 
tories  Co.  From  a  judgment  for  plaintiff  defendant  appeals.  Af- 
firmed. 

McCleULANd,  J.  The  action  was  for  damages  to  property  in  con- 
sequence of  setting  off  of  explosives  in  and  about  quarrying  stone. 
The  appellee  was  the  plaintiff,  and  the  appellant  the  sole  defendant. 

The  court  properly  declined,  on  objection  by  plaintiff  to  allow  de- 
fendant to  show  that  Burrows  conveyed  the  lot  to  W.  J.  Scott, 
and  not  to  the  plaintiff.    The  deed  was  the  best  evidence  of  the  fact. 

There  is  no  error  in  the  record.     The  judgment  is 

Affirmed. 


The  Best  EvroENCE  Rule  619 

GLOS  V.  CESSNA. 
201  III.  6g.     (1904) 

Cart  WRIGHT,  J.  On  December  6,  1902,  appellee,  Sarah  Louise 
Cessna,  filed  in  the  office  of  the  clerk  of  the  Circuit  Court  of  Cook 
County  her  application  to  the  court  to  register  her  title  to  a  lot  in 
Chicago  pursuant  to  an  act  concerning  land  titles,  in  force  May  i, 
1897. 

On  the  hearing  before  the  examiner  the  applicant  offered  in  evi- 
dence an  abstract  of  title  and  also  a  book  of  abstracts,  both  of  which 
were  objected  to  by  appellant.  According  to  the  report  of  the  ex- 
aminer, he  stated,  in  reply  to  the  objections,  that  the  abstract  was 
good  for  the  purpose  of  satisfying  him  as  to  the  applicant's  title 
but  not  as  proof  of  title  against  the  objection  of  appellant,  and  that 
the  book  of  abstracts  was  the  property  of  the  recorder  of  deeds,  and 
the  reference  was  made  to  him  as  examiner  in  order  that  he  might 
have  at  his  disposal  the  public  records  in  the  office  of  the  recorder, 
and  he  would  let  the  books  go  in  subject  to  the  objection.  There  was 
no  evidence  that  the  original  deeds  which  appeared  in  the  alleged 
abstract  were  lost  or  destroyed  or  that  the  abstract  book  was  on  file 
in  the  office  of  the  recorder.  The  book  was  not  identified  in  any  way, 
and  there  was  nothing  to  show  that  it  was  a  public  record,  if  it  would 
have  been  admissible  when  so  proved.  The  act  for  registering  title 
may  be  of  a  progressive  nature,  but  not  to  the  extent  of  abrogating 
rules  of  evidence  and  permitting  the  introduction  of  abstracts  with- 
out proper  foundation  being  laid.     (Glos  v.  Hallowell,  190  111.  65.) 

Reversed  and  remanded. 


EMPIRE  CO.  V.  LINDENMEIR. 

54  Colo.  497.     (1913) 

Scott,  J,  The  defendants  in  error  on  the  nth  day  of  May,  1907, 
and  who  were  at  that  time  the  owners  of  certain  lots  and  buildings  in 
the  city  of  Fort  Collins,  entered  into  a  written  contract  with  the  Cole- 
Potter  Construction  Company,  a  corporation,  for  the  construction  of 
a  theater  building  on  the  said  premises.  Under  the  contract  the  con- 
struction company  was  to  provide  all  the  materials  and  perform  all 


620  Cases  on  Evidence 

the  work  to  be  performed  under  the  contract  and  specified  therein. 
The  work  and  material  were  to  be  in  accord  with  the  plans  and  speci- 
fications of  the  architect,  E.  H.  Moorman,  named  in  the  agreement, 
and  which  plans  and  specifications  were  declared  to  be  a  part  of  the 
contract.    But  it  was  expressly  agreed: 

"It  is  further  understood  and  agreed  by  the  parties  hereto,  that  any 
and  all  drawings  and  specifications  prepared  for  the  purpose  of  this 
contract  by  the  said  architect  are  and  remain  his  property,  and  that 
all  charges  for  the  use  of  the  same,  and  for  the  services  of  said  archi- 
tect, are  to  be  paid  by  the  said  owner." 

The  only  errors  complained  of  and  discussed  in  the  briefs,  and 
which  we  are  therefore  justified  in  considering,  are  (a)  the  admission 
of  oral  testimony  upon  th^  hearing  concerning  the  plans  and  specifica- 
tions referred  to  in  the  original  contract,  the  original  and  no  copy  of 
which  could  be  produced  at  the  trial,  (b)  error  of  the  court  in  the  al- 
lowance of  the  $703.35,  interest,  and  (c)  the  rendition  of  judgment 
without  proof  of  the  payment  of  the  lien  judgments. 

In  regard  to  the  first  contention,  it  will  be  noticed  that  the  plans  and 
specifications  were  under  the  contract,  to  be  and  remain  the  property 
of  the  architect.  It  seems  also,  that  no  copy  of  these  was  recorded 
with  or  as  a  part  of  the  contract,  and  also  that  the  original  nor  a  copy 
was  attached  to  the  contract.  The  architect  testifies  concerning  the 
disposition  and  loss  of  the  plans  and  specifications  as  follows: 

"I  did  have  the  original  plans  and  specifications  of  that  building, 
but  I  can't  find  them.  I  made  a  search  for  them  very  carefully.  Q. 
Who  had  these  plans  and  specifications?  A.  The  original  drawings 
are  always  found  on  file  or  supposed  to  be  on  file,  in  the  architect's 
office." 

The  rule  of  this  court  in  this  respect  seems  to  be : 

That  a  particular  instrument  existed,  is  the  most  material  inquiry; 
the  facts  of  its  existence  and  the  contents  of  it  are  matters  to  be  tried 
by  the  jury ;  the  loss  of  it  must  be  made  out  to  the  satisfaction  of  the 
court.  The  law  exacts  nothing  unreasonable  in  such  a  case.  If  parol 
proof  of  the  loss  establishes  the  fact  with  reasonable  certainty,  that  is 
sufficient.  No  precise  rule  can  be  safely  laid  down  upon  this  subject, 
further  than  this,  that  diligent  search  and  inquiry  should  be  made  of 
those  places  or  persons  in  whose  custody  the  law  presumes  the  instru- 
ment to  be.  Hobson  v.  Porter,  2  Colo.  28;  Londoner  v.  Stewart,  3 
Colo.  47;  Hetson  v.  Davenport,  4  Colo.  169. 

The  law  does  not,  however,  require  direct  and  positive  evidence  of 
the  loss  or  destruction  of  the  document,  but  requires  only  such  evi- 


Thb  Best  Evidence  Rule  621 

dence  as  will  raise  a  reasonable  inference  of  its  loss  or  destruction. 
17  Cyc.  543. 

There  was  no  error  in  the  admission  of  the  contract  exclusive  of  the 
plans  and  specifications  referred  to  therein. 

Modified  and  affirmed. 


KITZA  V.  OREGON  SHORT  LINE  R.  CO. 
j6p  III.  A  pp.  6op.     (19 12) 

Smith,  J.  This  action  was  brought  by  appellant,  Michael  Kitza, 
against  the  Oregon  Short  Line  Railroad  Company  in  the  Municipal 
Court  of  Chicago,  to  recover  damages  caused  by  the  negligence  of  the 
railroad  company  in  failing  to  safely  carry  sheep  from  Ketchum, 
Idaho,  to  Chicago,  Illinois.  The  declaration  consists  of  six  counts.  All 
the  counts,  except  the  fourth,  declare  on  a  verbal  or  common  law  con- 
tract of  shipment.  The  fourth  count  declares  upon  a  written  agree- 
ment between  the  plaintiff  and  defendant. 

At  the  close  of  the  evidence  the  trial  court  instructed  the  jury  to 
return  a  verdict  in  favor  of  the  defendant,  and  judgment  was  entered 
upon  the  verdict  so  returned.  Appellant,  plaintiff  below,  prosecutes 
this  appeal  to  reverse  the  judgment. 

Several  grounds  are  urged  for  the  reversal  of  the  judgment.  We 
deem  it  necessary  to  the  decision  of  the  case,  as  represented  by  the  rec- 
ord, to  consider  and  discuss  only  one  feature  of  the  case;  namely  that 
the  contract  between  the  parties  was  a  written  contract  and  it  was  not 
put  in  evidence,  but  recovery  was  sought  upon  an  alleged  agreement 
shown  not  to  be  the  final  contract  which  was  entered  into  between  the 
parties. 

From  the  testimony  of  the  appellant  himself  it  appears  that  he  told 
the  agent  at  Ketchum,  Idaho,  after  the  sheep  had  been  delivered  to  the 
carrier  at  that  point:  "Well,  we  are  shipping  to  Chicago.  'Well,  all 
right,'  he  says.  He  made  a  contract  out.  He  handed  it  to  me  and  I 
signed  it.  Yes,  I  looked  it  over.  Q.  Did  you  read  it?  A.  Yes."  The 
plaintiff  further  testified  that  he  kept  his  contract  until  he  reached 
Omaha,  where  he  exchanged  it  for  a  return  ticket.  The  question  is 
thus  presented  by  the  record  whether  a  plaintiff  may  recover  upon  an 
oral  or  common  law  contract,  consisting  of  words  spoken  at  the  time 
of  shipment,  whe;i  a  written  contract  was  entered  into  between  the 


622  Cases  on  Evidence 

parties  at  the  time  of  the  shipment  and  before  tlie  freight  started  upon 
its  route.  In  our  opinion  there  can  be  no  such  recovery.  The  law  is 
well  settled  that  where  oral  negotiations  or  conversations  are  subse- 
quently embodied  in  a  written  contract,  the  written  contract  supersedes 
the  oral  one,  and  is  the  contract,  and  the  only  contract.  There  cannot 
be  an  oral  contract  and  a  written  contract  subsisting  between  the  par- 
ties where,  subsequent  to  the  conversation  or  negotiations,  the  contract 
is  embodied  in  writing.  This  is  the  ordinary  rule,  and  it  applies  in 
cases  of  shippers  and  carriers  as  well  as  between  other  parties.  Hut- 
chinson on  Carriers,  3  Ed.,  Sees.  167,  168,  171 ;  6  Cyc,  pp.  416,  420, 
427 ;  Richmond  &  D.  R.  R.  Co.  v.  Shomo,  90  Ga.  496. 

The  burden  of  proof  was  upon  appellant  to  prove  the  contract  upon 
which  the  shipment  was  made.  This  he  failed  to  do,  and  he  cannot 
recover  upon  a  contract  which  did  not  exist.  The  plaintiff  availed  him- 
self of  the  benefits  of  the  written  contract,  which  he  says  was  entered 
into,  and  yet  he  occupied  the  attitude  in  the  trial  court  of  seeking  to 
avoid  its  terms  and  conditions  by  basing  his  case  upon  an  oral  contract 
of  shipment. 

It  is  urged  that  there  is  no  evidence  of  a  written  contract,  whether 
the  paper  which  the  plaintiff  signed  was  a  contract  or  otherwise,  and 
that  the  court  cannot  assume  that  the  paper  signed  by  the  plaintiff  was 
a  contract.  The  answer  to  that  contention  is  that  the  court  was  not 
required  and  this  court  is  not  required  to  make  any  such  assumption. 
The  plaintiff  himself  proved  by  his  testimony  that  a  written  contract 
was  entered  into;  that  he  read  the  contract  and  signed  it.  For  the 
purpose  of  this  case,  therefore,  it  is  shown  without  controversy  that 
a  written  contract  was  entered  into  for  the  shipment  of  the  sheep  in 
question  at  the  initial  point  of  shipment  and  before  the  actual  transit  of 
the  shipment  was  commenced.  It  appears  from  the  evidence  of  the 
plaintiff  that  he  had  been  engaged  in  the  sheep  business  in  Idaho  for 
twenty-seven  years,  during  which  time  he  had  shipped  mainly  to  the 
Chicago  market;  and  that  he  accompanied  one  or  two  shipments  a 
year  to  Chicago  over  the  route  of  the  defendant  company;  and  the 
plain  inference  is  that  he  knew  clearly  the  terms  and  conditions  of  the 
contract.  He  states  positively  that  he  read  it.  There  is,  therefore,  no 
question  in  the  case  as  to  any  illegal  provisions  in  the  contract  of  ship- 
ment for  the  contract  is  not  before  the  court.  The  record  is  silent  as 
to  its  terms  and  provisions.  We  think  the  evidence  shows  clearly  the 
knowledge  and  assent  of  the  plaintiff  to  this  written  contract,  and 
whatever  right  of  recovery  he  may  have,  if  any,  must  be  based,  so  far 
as  this  case  is  concerned,  upon  the  terms  and  provisions  of  the  contract 


The  Best  Evidence  Rule  623 

which  subsisted  between  the  parties  for  the  shipment  of  the  stock  in 
question. 

We  are  of  the  opinion  that  under  the  facts  and  circumstances  dis- 
closed by  the  evidence  in  this  case,  a  common  carrier  may  require  a 
contract  of  shipment  to  be  in  writing.  It  appears  that  the  stock  was 
to  be  transported  beyond  the  terminus  of  the  defendant  company,  and 
required  the  stock  to  be  deHvered  to  a  connecting  line  of  transporta- 
tion, and  we  see  no  reason  why  it  would  not  be  perfectly  proper  and 
legal  for  the  defendant  to  require  the  contract  of  shipment  to  be  in 
writing,  especially  in  view  of  the  fact  that  the  Interstate  Commerce 
law  requires  the  carrier  to  issue  a  bill  of  lading  or  receipt.  It  has  been 
expressly  held  that  a  carrier  may  require  a  written  contract.  Texas 
Mexican  C.  Rwy.  Co.  v.  Gallagher,  70  S.  W.  897 ;  Ft.  Worth  &  D.  C. 
Ry.  Co.  V.  Wright,  58  S.  W.  846 ;  C.  R.  I.  &  P.  R.  R.  Co.  v.  Colby,  69 
Neb.  572. 

The  evidence  in  this  case  shows  that  it  was  customary  for  the  de- 
fendant company  to  require  a  written  contract  in  every  instance,  and 
this  custom  was  of  long  standing  and  was  well  known  to  plaintiff. 

The  evidence  shows  very  clearly  as  we  have  stated  above,  that  the 
contract  between  the  parties  was  not  offered  in  evidence.  Plaintiff 
could  not  recover  upon  a  contract  which  did  not  exist;  and  the  court 
did  not  err  in  directing  a  verdict  for  the  defendant.  The  judgment  is 
affirmed. 

Affirmed. 


CONN.  FIRE  INS.  CO.  v.  MOORE. 
134  Ky.  18.     (1913) 

Opinion  of  the  court  by  William  Rogers  Clay,  Commissioner — Re- 
versing. 

Plaintiff,  Mona  M.  Moore,  was  engaged  in  the  millinery  business 
in  the  town  of  Clinton,  Kentucky.  On  March  28,  191 1,  the  Connecti- 
cut Fire  Insurance  Company  issued  to  her  a  policy  insuring  her  stock 
against  fire  in  the  sum  of  $500.  During  the  life  of  the  policy  her 
stock  of  goods  was  destroyed  by  fire.  She  brought  this  action  to  re- 
cover the  amount  of  the  policy.  A  trial  before  a  jury  resulted  in  a 
verdict  and  judgment  in  her  favor  in  the  sum  of  $500.  The  insurance 
company  appeals. 


624  Cases  on  Evidence 

The  policy  sued  on  provides  that  "the  sum  for  which  this  company 
is  liable  pursuant  to  this  policy  shall  be  payable  sixty  days  after  due 
notice,  ascertainment,  estimate,  and  satisfactory  proof  of  the  loss  have 
been  received  by  this  company."  The  fire  occurred  on  November  24, 
191 1.  Suit  was  brought  on  January  22,  1912.  Among  the  defenses 
interposed  by  the  company  was  a  plea  in  abatement,  based  on  the  fact 
that  suit  was  prematurely  brought.  To  avoid  the  effect  of  this  plea 
plaintiff  alleged  that  before  the  commencement  of  the  action  defendant 
had  denied  all  liability  under  the  policy,  and  had  thereby  waived  proof 
of  loss.  The  proof  offered  by  plaintiff  on  the  question  was  the  testi- 
mony of  Earnest  Reid,  who  stated  that  he  had  read  a  letter  from  the 
defendant  to  its  local  agent,  J.  M.  Kemp,  denying  liability  under  the 
policy.  Reid  made  a  copy  of  the  letter,  and  was  permitted,  over  the 
objection  of  the  defendant  to  read  the  copy.  Defendant's  agent  testi- 
fied that  he  delivered  the  letter  to  defendant's  attorney.  Where  a 
party  desires  to  introduce  proof  of  the  contents  of  a  letter  in  the  pos- 
session of  the  adverse  party,  the  proper  practice  is  to  serve  notice  on 
the  adverse  party  to  produce  the  letter.  In  the  event  of  his  failure  to 
do  so,  other  evidence  of  the  contents  of  the  letter  is  not  admissible. 
Heilman  Milling  Co.  v.  Hotaling,  21  K.  L.  R.  950.  In  this  case  there 
was  no  notice  to  the  defendant  to  produce  the  letter,  and  proof  of  the 
contents  of  the  letter  should  not  have  been  admitted. 

Judgment  reversed  and  cause  remanded  for  a  new  trial  consistent 
with  this  opinion. 


BROCK  v.  SATCHELL. 
130  La.  833.    (1912) 


SoMMERViLLE,  J.  The  first  of  these  two  suits,  which  have  been  con- 
solidated, was  brought  by  Mr.  Brock  to  have  a  tax  title,  under  Act  No. 
82  of  1884,  confirmed,  and  to  have  him  declared  the  owner  of  certain 
real  estate.  He  made  Charles  Satchell  or  his  heirs  defendants,  and 
had  them  cited  through  a  curator  ad  hoc. 

There  was  judgment  in  his  favor,  from  which  judgment  Mrs.  Eliza- 
beth S.  Morris  as  the  sole  surviving  heir  of  her  father  and  mother, 
Mr.  and  Mrs.  Charles  Satchell,  prosecutes  this  appeal,  as  a  party  in 
interest.    She  was  not  a  formal  party  to  the  suit  in  the  trial  court ;  but 


The  Best  Evidence  Ruee  625 

she  assigns  in  this  court  certain  errors  appearing  on  the  face  of  the 
record,  and  she  asks  for  a  reversal  of  the  judgment  appealed  from. 

The  judgment  will  be  reversed. 

The  plaintiff,  Richard  Brock,  was  the  defendant  in  a  suit  by  H.  F. 
Lewis  &  Co.,  Limited,  to  compel  hirri  to  take  the  title  referred  to.  He 
made  a  pretense  of  refusing  the  title  on  various  grounds,  and  which 
we  sustained  in  123  La.  i,  48  So.  563.  Notwithstanding  the  judgment 
in  his  favor,  Mr.  Brock  accepted  the  title  from  H.  F.  Lewis  &  Co., 
Limited,  and  then  filed  this  suit,  asking  for  a  judicial  confirmation  of 
the  title  which  he  had  just  judicially  declared  to  be  invalid,  null  and 
void.  The  curator  ad  hoc,  whom  he  had  appointed  to  represent  the 
real  owner  of  the  property,  filed  an  answer,  in  which  he  denied  the  ti- 
tle of  his  pVincipal.  On  the  trial,  plaintiff  did  not  produce  and  file  a 
copy  of  the  title  which  he  was  asking  to  have  confirmed.  He  did  not 
file  the  title  which  he  had  acquired  from  H.  J.  Lewis  &  Co.  Limited. 
He  offered  no  competent  evidence  whatever  to  prove  title  to  real  es- 
tate. His  only  offers  of  evidence,  as  disclosed  by  the  record  and  the 
docket  entries,  were  a  certificate  from  the  register  of  conveyances, 
showing  that  a  copy  of  the  act  of  sale,  under  Act  No.  82  of  1884,  to 
D.  Negrotto  had  been  registered,  and  two  ex  parte  affidavits,  one 
showing  that  the  assessors  had  erred  in  the  description  of  the  property 
sold,  and  the  other,  by  plaintiff  himself,  that  he  and  his  authors  had 
had  possession  of  the  property  involved  for  an  indefinite  time.  The 
plaintiff  and  the  curator  ad  hoc  failed  to  inform  the  trial  court  that 
we  had  decided  that  the  title  sued  upon  was  null  and  void. 

The  conveyance  certificate  did  not  prove  title  in  plaintiff,  or  in 
any  one  else.  The  two  ex  parte  affidavits  were  incompetent  to  prove 
title;  and  they  did  not  even  cover  the  matter  of  title  in  their  scope. 
They  contain  the  parol  statements  of  the  witnesses,  and  cannot  be  used 
to  establish  title  to  real  estate.  They  should  have  been  objected  to 
on  the  ground  of  incompetency  by  the  curator  ad  hoc,  and  the  objec- 
tion would  have  been  sustained.  Had  the  title  under  Act  No.  82  of 
1884  been  produced  and  filed,  the  district  judge  would  have  seen  as 
we  had  in  123  La.  i,  48  So.  563,  that  that  title  did  not  refer  to  the 
property  claimed  in  plaintiff's  petition. 


626  Cases  on  Evidence 

MOON  V.  HARRIS. 
122  Minn.  138.    (1913) 

DiBELL,  C.  At  the  November,  1912,  general  election  the  contestant, 
C.  O.  Moon  and  the  contestee,  J.  O.  Harris,  were  rival  candidates  for 
the  office  of  register  of  deeds  of  Beltrami  county.  The  contestee,  Har- 
ris, was  declared  elected  by  the  county  canvassing  board  by  a  ma- 
jority of  five.  The  contestant.  Moon,  appealed  to  the  District  Court. 
Upon  trial  had  he  was  declared  elected  by  a  majority  of  three.  The 
contestee  appeals  from  the  order  denying  his  motion  for  a  new  trial. 

The  contestee  claims  that  the  court  was  in  error  in  finding  that  the 
contestant  received  a  plurality  of  the  votes  cast. 

The  official  returns  are  evidence  of  the  votes  cast.  The  presumption 
is  that  they  correctly  state  the  result  of  an  accurate  count  of  the  bal- 
lots. The  testimony  of  the  precinct  officers  tended  to  show  that  the 
precinct  returns  were  correctly  made  and  were  at  the  time  of  the  trial 
in  the  condition  when  made.  This  evidence  was  offered  to  repel  the 
attack  made  upon  their  integrity,  because  of  the  careless  method  of 
their  keeping  after  their  return  to  the  county  auditor.  The  contestant, 
however,  necessarily  relied  upon  the  legal  presumption  of  their  accu- 
racy. There  is  no  presumption  that  a  recount  would  show  a  gain  or 
loss  either  for  Moon  or  for  Harris.  The  presumption  is  to  the  con- 
trary. To  make  a  successful  contest  it  was  necessary  for  Moon  by  a 
recount  of  the  ballots,  to  change  the  result  declared  by  the  canvassing 
board  to  a  result  in  his  favor.  It  was  not  necessary  to  recount  every 
precinct  of  the  county.  It  was  necessary  that  he  go  far  enough  to 
show  errors  in  the  returns  of  certain  precincts,  which,  when  corrected 
and  added  to  the  presumptively  correct  official  returns,  gave  him  a 
plurality.  And  so  when  by  a  recount  of  the  65  precincts  he  reduced 
Harris'  vote  by  3,  and  increased  his  vote  by  5,  thus  reducing  the  plural- 
ity of  Harris  on  the  recount  precincts  to  15,  and  used  the  official  re- 
turns of  Grant  Valley  and  Frohn,  where  he  had  a  plurality  of  18  he 
was  elected  by  a  plurality  of  three. 

This  result  was  reached  by  the  trial  court,  and  correctly,  unless 
such  suspicion  attached  to  the  keeping  of  the  ballots  and  returns  as 
required  their  exclusion,  and  this  is  a  claim  made  by  th,e  contestee. 

The  contestee  claims  that  the  ballots  and  returns  were  so  carelessly 
kept  and  with  so  much  opportunity  of  being  tampered  with,  that  they 
should  not  be  received  in  evidence  to  overturn  the  llnding  of  the 
county  canvassing  board. 


Thb  Best  Evidence  Rui,e  627 

The  court  found  that  the  blue  envelopes,  containing  the  county 
ballots  of  the  precincts  of  Frohn  and  Grant  Valley,  "were  surrepti- 
tiously removed  from  the  county  auditor's  vault  by  some  person  whose 
identity  the  evidence  does  not  disclose."  They  disappeared  during  the 
progress  of  the  recount. 

There  were  a  number  of  irregularities  in  the  keeping  of  the  ballots, 
in  the  way  of  stringing  them,  and  in  sealing  them,  and  in  returning 
them  to  the  county  auditor,  and  in  keeping  them  after  they  were  re- 
turned. Some  seals  were  missing  from  the  envelopes  or  were  broken 
or  were  mutilated.  The  court  specifically  found  that  "the  ballots  were, 
when  recounted  by  the  inspectors,  and  when  received  in  evidence 
herein,  in  the  same  condition  as  when  counted  by  the  judges  of  elec- 
tion." The  difference  between  the  total  vote  shown  by  the  returns  and 
upon  the  recount  was  only  two.  In  referring  to  the  ballots  the  trial 
court,  in  its  memorandum,  said: 

"I  am  fully  satisfied  that  they  are  intact  and  genuine,  and  that  they 
are  the  identical  ballots  cast  by  the  voters  and  are  now  in  the  same 
condition  in  every  respect  as  when  voted.  This  conclusion  is  based 
upon  all  of  the  testimony  of  the  case,  including  that  of  two  of  the  in- 
spectors, as  well  as  upon  my  own  careful  inspection  of  the  envelopes 
and  ballots." 

The  books  are  replete  with  cases  stating,  in  one  form  or  another, 
that  the  ballots  are  the  primary  or  the  best  evidence  in  a  contest  of  an 
election ;  but  that  to  overcome  the  result  of  an  official  canvass  by  a  re- 
sort to  the  ballots  it  must  be  shown  that  they  are  intact  and  genuine 
and  have  not  been  tampered  with.  Newton  v.  Newell,  26  Minn.  529; 
Stemper  v.  Higgins,  38  Minn.  222;  Caldwell  v.  McElvain,  184  111.  552; 
Hartman  v.  Young,  17  Ore.  150,  20  Pac.  17,  2  L.  R.  A.  596,  11  Am.  St. 
787 ;  Albert  v.  Twohig,  35  Neb.  563. 

The  question  whether  the  ballots  have  been  so  preserved  that  they 
may  be  safely  used  to  defeat  the  result  shown  by  the  returns  is  a  ques- 
tion of  fact  the  decision  of  which  is  with  the  trial  court.  The  court 
found  that  the  ballots  and  the  returns,  when  oflfered  in  evidence,  were 
in  their  original  condition.  It  was  in  a  better  position  than  we  can  be 
for  making  a  correct  finding;  and  we  hold  that  it  was  properly  made. 

It  is  likely  true  that  in  some  jurisdictions  ballots  kept  as  these  were 
would  not  be  allowed  in  evidence  to  overturn  the  result  of  an  official 
canvass  and  that  a  contestant  as  close  to  the  ballots  as  Moon  was  would 
not  be  permitted  to  overturn  the  official  count  by  their  use.  We  think 
that  under  the  finding  the  trial  court  was  right  in  receiving  them. 

The  election  was  very  close.    A  slight  change  in  the  two  uncounted 


628  Cases  on  Evidence 

precincts  would  give  the  election  to  Harris;  but  the  presumption  is 
against  such  change.  A  slight  tampering  with  the  ballots  might  bring 
the  same  result ;  but  the  finding  is  that  there  was  no  tampering.  The 
finding  of  the  trial  court  that  Moon  was  elected  by  a  majority  of  three 
is  supported  by  the  evidence. 

Order  affirmed. 


CHEEVER  V.  CONGDON. 
S4  Mich.  296.    (1876) 


Graves,  J.  This  action  was  brought  at  the  instance  of  David  Cong- 
don  as  guardian  of  Henry  Congdon,  a  minor  on  the  bond  given  by  Ed- 
ward H.  Congdon  as  executor  of  Elisha  Congdon,  deceased,  to  recover 
an  amount  the  minor  was  entitled  to  from  the  estate  of  Elisha  Cong- 
don, and  which  amount  the  Probate  Court  had  ordered  should  be  paid 
to  him.  The  case  was  tried  by  the  court  without  a  jury.  The  defense 
was,  that  after  attaining  majority,  Henry  Congdon,  who  had  been  the 
ward  of  David,  as  before  stated,  settled  the  whole  matter  with  Ed- 
ward, the  executor,  and  received  from  the  latter  in  cash  and  note  the 
entire  amount  due  him.  To  make  out  this  defense  the  defendants 
called  Henry  Congdon  and  he  swore  positively  to  the  accord  and  sat- 
isfaction, and  that  it  occurred  in  January,  1872.  In  the  same  connec- 
tion he  was  asked  by  defendants  when  he  became  twenty-one  years 
old.  The  plaintiff's  counsel  objected  that  the  witness  was  incompetent 
to  prove  his  own  age  until  it  should  be  shown  that  better  evidence  was 
not  attainable. 

The  court  overruled  the  objection  and  the  witness  answered  that  he 
became  twenty-one  on  the  24th  of  December,  1870. 

The  objection  was  not  well  based.  The  witness  was  clearly  compe- 
tent. The  only  question  about  the  testimony  called  for  from  him  was 
confined  to  its  value  as  evidence,  and  that  was  a  matter  to  be  consid- 
ered by  the  judge  in  making  up  his  findings  of  facts. 

On  the  conclusion  of  the  evidence  the  court  found  that  the  settle- 
ment was  made  as  claimed,  and  as  a  consequence  that  the  defense  was 
established. 

The  judgment  should  be  affirmed  with  costs. 

The  other  justices  concurred. 


The  Best  Evidence  Rui^e;  629 

COMMONWEALTH  v.  STEVENSON. 
142  Mass.  466.    (1886) 

G)mplaint  for  unlawfully  selling  intoxicating  liquors  to  a  minor, 
on  January  20,  1886.  Trial  in  the  Superior  Court  before  Thompson, 
J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  follows : 

The  government  introduced  as  a  witness  one  Rollins  and  asked  him 
where  he  was  born.  His  answer  was,  "In  Boston."  The  district  at- 
torney then  asked  him  how  old  he  was.  To  this  question  the  defendant 
objected ;  but  the  judge  permitted  the  question  to  be  answered,  against 
the  defendatit's  exception.  The  witness  answered  that  he  was  twenty 
years  old  on  May  15,  1885. 

Holmes,  J.  We  see  no  sufficient  reason  why  a  person  should  not 
be  allowed  to  testify  to  the  date  of  his  birth,  if  that  question  is  fairly 
open  on  the  exceptions.  The  certificate  which  is  made  evidence  by  the 
Pub.  Sts.  c.  32,  sec.  II,  i^  hearsay,  and  no  more  likely  to  be  accurate 
than  the  sworn  statement  01  the  party  concerned,  based,  as  it  must  be 
on  family  tradition,  and  fortified  by  his  knowledge  of  himself. 

Exceptions  sustained  on  another  ground. 


HILL  V.  ELDRIDGE. 
126  Mass.  234.    (i8yp) 


Contract  on  an  account  annexed  for  goods  sold  and  delivered.  An- 
swer: I.  A  general  denial.  2.  Infancy,  and  that  the  goods  sold  were 
not  necessaries. 

At  the  trial  in  the  Superior  Court,  before  Gardner,  J.,  without  a 
jury,  the  only  question  in  issue  was  that  of  the  defendant's  infancy. 
The  defendant  was  a  witness,  and,  against  the  plaintiflF's  objection,  was 
permitted  to  testify  that,  when  the  goods  were  purchased,  he  was  six- 
teen years  of  age,  and  that,  at  the  time  of  the  trial,  he  was  twenty- 
three  years  of  age.  It  appeared  that  the  defendant's  father  was  dead 
at  the  time  of  the  trial,  but  it  did  not  appear  whether  his  mother  was 
living  or  not.  The  defendant  was  the  only  witness  as  to  his  age,  and 
no  other  evidence  was  oflfered  in  relation  thereto.  The  judge  found 
for  the  defendant ;  and  the  plaintiff  alleged  exceptions  to  the  admission 
of  the  defendant's  evidence. 


630  Cases  on  Evidence 

By  the  Court.  This  case  does  not  present  the  question  whether  a 
person  can  be  permitted  to  testify  to  the  precise  day  of  his  birth.  It  is 
quite  clear  that  one  may  testify,  from  his  own  knowledge  of  himself, 
whether  he  was  twenty-one  or  sixteen  years  of  age  at  a  certain  time 
(which  was  the  only  material  point  upon  which  the  testimony  of  the 
defendant  appears  to  have  been  admitted),  and  that  such  weight  may 
be  given  to  his  testimony  as  the  court  or  the  jury  trying  the  case  may 
think  it  entitled  to  receive.  See  Cheever  v.  Congdon,  34  Mich.  296; 
Watson  V.  Brewster,  i  Penn.  St.  381,  383;  State  v.  Cain,  9  W.  Va. 

559,  570. 

Exceptions  overruled. 


FIRST  NATIONAL  BANK  v.  JAMIESON. 
63  Ore.  594.    (1912) 

The  First  National  Bank  of  Bandon  brought  this  action  against  C. 
E.  Jamieson  alone  to  recover  upon  a  promissory  note,  executed  ip  its 
favor  by  him  and  one  Dunklee. 

Defendant  answered,  admitting  the  execution  of  the  note,  but  al- 
leged that  he  signed  merely  as  an  accommodation  maker,  and  that  this 
was  known  to  plaintiff  that  thereafter  the  note  was  fully  paid  and  sat- 
isfied by  the  sale  and  transfer  to  plaintiff  by  Mrs.  F.  Dunklee  of  cer- 
tain chattels  of  the  agreed  value  of  $450,  which  were  accepted  in  full 
satisfaction  of  the  note,  said  transfer  being  made  to  C.  R.  Wade,  at- 
torney and  agent  for  the  bank. 

Plaintiff  replied,  denying  the  new  matter  alleged  in  the  answer,  and 
alleging  that  the  transfer  by  Mrs.  Dunklee  to  Wade  was  in  trust  to 
sell  the  property  and  apply  the  proceeds,  so  far  as  they  would  go,  to 
the  payment  of  the  note,  and  not  otherwise,  and  alleged  that  at  the 
time  Mrs.  Dunklee  made  the  transfer  she  did  not  own  the  property 
she  assumed  to  sell,  but  had  previously  sold  it  to  one  J.  P.  Tuppers, 
who  recovered  the  same  by  an  action  at  law,  and  that  nothing  had  been 
realized  from  the  Security.  The  execution  of  the  note  was  admitted 
and  defendant  introduced  a  bill  of  sale  from  Fenetta  Dunklee  to  C. 
R.  Wade  of  the  goods  mentioned  in  the  answer.  Said  bill  of  sale  was 
upon  its  face  an  unconditional  transfer  to  Wade  as  trustee  for  the 
bank.  The  defendant  then  offered  oral  testimony  tending  to  show  that 
the  intent  of  such  bill  of  sale  was  to  liquidate  the  note.     Wade  testi- 


The  Best  Evidence  Rui,e  631 

fied,  on  rebuttal,  that  at  the  time  of  the  transaction  a  written  memo- 
randum was  made  by  him  showing  the  purpose  of  the  bill  of  sale; 
that  he  made  two  copies  on  the  typewriter  at  the  same  time,  each 
signed  by  himself,  each  written  by  the  same  impression  of  the  type- 
writer, and  each  absolutely  identical;  that  he  kept  one  of  these  dupli- 
cates for  his  own  use  and  gave  the  other  to  Mrs.  Dunklee,  marking 
his,  "office  copy->"  To  the  introduction  of  this  instrument  the  defend- 
ant objected,  and  the  objection  was  overruled.  The  admission  of  this 
testimony  is  assigned  as  error. 

McBride,  J.  The  memorandum  amounted  to  a  declaration  of  trust 
on  the  part  of  Wade,  and  being  an  exact  counterpart  of  the  one  given 
to  Mrs.  Dunklee,  made  by  the  same  impression  of  the  insti-ument,  and 
signed  at  the  same  time,  it  was  as  much  an  original  as  the  one  delivered 
to  Mrs.  Dunklee.  It  was  a  duplicate  and  therefore  admissible  as  an 
original.  17  Cyc.  517;  Missouri  Pac.  Ry.  Co.  v.  Heidenheimer,  82 
Tex.  195  (17  S.  W.  608,  2^  Am.  St.  861)  ;  State  v.  Allen,  56  S.  C. 
495  (35  S.  E.  204) ;  Nelson  v.  Blakely,  54  Ind.  29. 

The  judgment  is  affirmed. 

Affirmed.    Rehearing  denied. 


HAY  v.  FIRE  CLAY  CO. 
179  Mo.  App.  567.     (1913) 


This  is  a  suit  on  a  contract  of  employment  alleged  to  have  been  en- 
tered into  between  plaintiff  and  defendant  corporation  for  the  render- 
ing of  services  by  plaintiff  to  defendant.  The  finding  and  judgment 
were  for  plaintiff  and  defendant  prosecutes  the  appeal. 

NoRTONi^  J.  It  appears  the  unsigned  writing  introduced  in  evidence 
was  typewritten  and  that  used  on  the  trial  was  a  carbon  copy.  The 
witness  Crawford  testified  that  what  is  known  both  as  an  original  and 
a  carbon  copy  were  made  at  the  same  time,  and  the  carbon  copy  was 
furnished  to  plaintiff  by  him.  Plaintiff  approved  it  as  setting  forth  the 
terms  of  the  agreement,  and  it  seems  retained  this  carbon  copy.  The 
original,  made  at  the  same  time  as  the  carbon  copy  was  neither  pro- 
duced nor  called  for,  and  the  witness  did  not  know  its  whereabouts. 
Because  of  this  alone,  it  is  urged  the  court  erred  in  receiving  the  car- 
bon copy  in  evidence,  but  we  are  not  so  persuaded.  Such  carbon  copies 
are  made  by  the  same  imprint  as  the  original  and  there  is  essentially 


632  Cases  on  Evidence 

indited  thereon  the  identical  matter.  Such  being  true,  if  the  original 
copy  accurately  reveals  the  statements  therein,  the  carbon  copy  does 
likewise.  Therefore,  carbon  copies  so  made  are  regarded  rather  as 
originals  and,  as  such,  primary  evidence  under  the  rule  of  evidence 
here  invoked,  for  they  essentially  partake  of  this  quality  in  the  process 
of  inditing  their  contents.  It  is  clear  the  writing  was  not  objection- 
able as  secondary  evidence  because  it  was  a  copy.  (See  Wright  v. 
Chicago,  B.  &  Q.  R.  Co.,  118  Mo.  App.  392,  94  S.  W.  555;  Bond  v. 
Sandford,  134  Mo.  App.  477,  114  S.  W.  570.) 
The  judgment  should  be  affirmed.    It  is  so  ordered. 


GLADSTONE  LUMBER  COMPANY  v.  KELLY. 
64  Ore.  163.     (1913) 

The  plainti-ff,  Gladstone  Lumber  Company,  a  corporation,  in  its  own 
right  and  as  assignee  of  sundry  claims  of  others,  recovered  judgment 
against  the  firm  of  Kelly  &  Mahoney.  While  the  partnership  was  in- 
debted on  the  original  claims  Kelly  conveyed  to  his  wife  certain  real 
property,  the  record  title  of  which  theretofore  was  in  the  name  of 
them  both  jointly.  An  execution  having  been  issued  on  the  judg- 
ment and  returned  unsatisfied,  the  plaintiff  began  this  suit  against 
Kelly  and  his  wife  to  set  aside  the  conveyance  mentioned,  on  the 
ground  that  the  husband  had  made  it  with  intent  to  hinder,  delay  and 
defraud  his  creditors,  and  particularly  the  plaintiff  here. 

Burnett,  J.  On  behalf  of  the  plaintiff  the  only  testimony  about 
where  the  real  ownership  of  the  premises  in  dispute  was  vested  came 
from  the  defendant  husband,  whom  the  plaintiff  called  as  a  witness. 
The  plaintiff  having  thus  vouched  for  his  credibility,  he  testified  very 
clearly  that  the  money  invested  in  the  land  was  his  wife's  separate 
property,  coming  to  her  from  the  estate  of  her  former  husband;  that 
he  himself  did  not  invest  anything  whatever  therein ;  that,  without  his 
wife's  knowledge  or  consent,  he  took  the  title  of  the  property  in  the 
names  of  them  both;  and  that  as  soon  as  the  fact  came  to  her  notice 
she  demanded  of  him  a  reconveyance  of  the  property  to  her  in  sev- 
eralty. To  contradict  him,  although  he  was  the  plaintiff's  own  wit- 
ness, an  attorney  of  a  bonding  company  was  called  by  plaintiff,  and, 
over  the  objection  of  defendant  was  allowed  to  testify,  without  pro- 
ducing the  writing,  that  in  an  application  made  by  Kelly  and  his  part- 


Thb  BesT  Evidence  Rui,e  633 

ner  to  the  company  for  a  building  bond,  in  a  transaction  occurring 
long  before  the  indebtedness  in  question  arose,  a  statement  in  writing 
was  made  of  the  property  of  the  applicants,  in  which  it  was  set  out 
that  the  defendant  Kelly,  the  husband,  was  the  owner  of  the  tract  in 
question.  This  property  statement  was  not  shown  to  have  come  to  the 
knowledge  of  the  wife,  and  was  not  signed  by  her,  although  she  exe- 
cuted the  building  bond  in  connection  with  that  statement.  Even  this 
was  not  proven,  except  by  the  attorney  witness.  No  showing  is  made 
of  any  diligence  to  produce  the  original  writing,  or  the  bond  which  the 
defendant  wife  is  said  to  have  signed,  except  the  statement  of  the 
witness  that  a  few  days  before  the  trial  he  had  forwarded  them  to 
the  home  office  of  the  company  in  New  York ;  hence  the  testimony  on 
that  subject  was  inadmissible  under  the  rule  laid  down  in  Wiseman  v. 
N.  P.  R.  R.  20  Ore.  425  (68  Pac.  11,  iiii ;  93  Am.  St.  748) ;  Price  v. 
Wolfer,  33  Ore.  15  (52  Pac.  759). 

The  decree  in  favor  of  the  defendants  was  right,  and  must  be  af- 
firmed, 

Mr.  Justice  Bean  concurs  in  the  result. 


C,  ST.  L.  &  N.  O.  R.  R.  CO.  v.  BENEDICT'S  AM'R. 
134  Ky.  673.     (ipi3) 

Clay,  C.  John  Benedict,  while  riding  in  the  caboose  of  a  local 
freight  train  owned  and  operated  by  the  Illinois  Central  Railroad 
Company,  lessee  of  the  Chicago,  St.  Louis  &  New  Orleans  Railroad 
Company,  was  killed  by  a  collision  between  that  train  and  a  train  ap- 
proaching from  the  rear.  His  administrator  brought  this  action 
against  the  two  companies  to  recover  damages  for  his  death.  The  trial 
resulted  in  a  verdict  and  judgment  in  his  favor  for  $12,500.  The  rail- 
road companies  appeal. 

During  the  progress  of  the  conductor's  examination  he  denied  that 
the  boy  was  on  the  train  with  his  knowledge  and  consent.  He  was 
then  asked  if  he  had  not  told  plaintiff,  Mr.  Benedict,  on  the  Sunday 
after  the  accident  near  Ernest  Reed's  store  that  John  was  on  his  way 
to  Fulton  that  day  to  get  a  job  as  flagman  and  that  he  (conductor)  was 
trying  to  help  him  get  that  job,  and  was  taking  him  to  Fulton  that  day 
for  that  purpose.  The  conductor  denied  making  the  statement,  and 
the  evidence  was  received  without  objection.    Later  on  plaintiff.  Bene- 


634  Cases  on  Evidence 

diet,  was  called  and  testified  that  the  witness,  at  the  time  and  place, 
made  such  a  statement  to  him.  This  testimony  was  objected  to,  and 
it  is  earnestly  insisted  that  the  court  erred  in  permitting  it  to  go  to 
the  jury.  It  is  true,  as  argued  by  counsel  for  defendants,  that  the 
statement  is  not  a  part  of  the  res  gestae.  It  is  equally  true  that  it  is 
the  general  rule  that  admissions  or  declarations  of  an  agent  made  after 
the  completion  of  the  transaction  are  not  admissible  against  the  prin- 
cipal, but  in  the  present  case  the  question  was:  Was  decedent  on  the 
train  with  the  knowledge  and  consent  of  the  conductor?  The  con- 
ductor repeatedly  stated  that  the  decedent  was  not  on  the  train  with 
his  knowledge  and  consent.  Whether  or  not  he  was  there  with  his 
knowledge  and  consent  was  not  a  collateral  fact,  but  one  of  the  main 
facts  in  issue.  Having  denied  knowledge  and  consent,  it  was  compe- 
tent to  show  statements  to  the  contrary  for  purposes  of  impeachment. 
The  evidence  complained  of  was  of  this  character,  and  the  court  ad- 
monished the  jury  that  the  admitted  evidence  was  not  substantive  evi- 
dence and  had  no  bearing  on  the  merits  of  the  case,  but  that  the  jury 
should  consider  it  only  as  affecting  the  credibility  of  the  conductor. 
With  this  admonition  the  evidence  was  clearly  admissible. 

While  the  engineer  in  charge  of  the  colliding  engine  was  on  the 
stand,  he  stated  that  the  air  pumps  of  the  engine  were  defective.  He 
was  asked  if  he  had  notice  of  the  condition  of  the  air  pumps. 
He  stated  that  he  had,  and  was  then  asked  where  he  got  the  notice.  He 
stated  that  he  had  gotten  it  from  a  report  made  by  the  engineer  han- 
dling the  engine  just  before  the  accident,  and  filed  in  the  round-house 
at  Mounds,  lUinois.  The  further  question  was  asked:  "What  did 
that  report  state  with  reference  to  that  engine?"  Over  the  objections 
of  the  defendants,  the  witness  was  permitted  to  state  that  the  air  pump 
was  in  a  bad  condition,  and  did  not  make  enough  air  to  supply  the 
train.  In  this  connection  it  is  insisted  that  there  was  a  failure  to  show 
that  the  record  in  question  was  made  in  the  regular  course  of  business, 
and  a  failure  to  introduce  the  person  making  the  record.  It  is  also 
insisted  that  it  was  not  proper  to  introduce  secondary  evidence  of  the 
record.  In  answer  to  the  last  objection  the  record  discloses  the  fact 
that  several  days  prior  to  the  trial  a  written  notice  was  served  on  the 
defendants  asking  them  to  produce  the  record  in  question,  and  a  rule 
was  also  asked  requiring  them  to  do  so.  The  defendants  failed  to  pro- 
duce the  record.  If,  then,  the  record  was  competent  at  all,  oral  evi- 
dence of  its  contents  was  certainly  admissible.  We  do  not  think  that 
the  record  in  question  is  to  be  considered  in  the  same  light  as  entries 
in  books.     One  of  the  material  questions  in  the  case  was,  Was  the 


The  Best  Evidence  Rule  635 

engine  in  a  defective  condition,  and  if  so,  was  this  condition  known 
to  the  defendants  and  their  agents,  or  could  it  have  been  known  by 
them  by  the  exercise  of  ordinary  care  We  think  the  evidence  was 
competent  as  bearing  on  the  question  of  notice.  It  is  true  that  after 
the  report  was  filed,  the  engine  could  have  been  repaired.  This  fact, 
however,  does  not  render  such  evidence  inadmissible.  Having  shown 
that  the  engine  was  in  a  defective  condition,  and  that  this  fact  was 
brought  home  to  the  defendants  and  their  agents,  the  defendants  could 
still  show  that  the  engine  was  repaired  and  that  the  alleged  defective 
condition  did  not  exist  at  the  time  of  the  accident. 

Judgment  affirmed. 


EDWARDS  V.  TRACY. 
62  Pa.  St.  276.     (iS6p) 


Sharswood,  J.  The  defendants  were  sued  in  the  court  below  as 
partners.  Daniel  Tracy,  George  H.  Benton  and  Edward  B.  Beebe 
were  in  business  under  the  firm  name  of  Tracy,  Benton  &  Co.  The 
goods  of  the  plaintiffs  were  sold  and  delivered  to  them. 

The  plaintiffs  offered  to  prove  the  declarations  of  Daniel  Tracy,  one 
of  the  defendants,  that  Vandervier  and  Thorn  were  members  of  the 
firm  of  Tracy,  Benton  &  Co.,  not  in  the  presence  of  either  Vandervier 
or  Thorn,  to  be  followed  by  acts  and  declarations  of  Vandervier  and 
Thorn,  or  one  or  either  of  them,  to  the  same  effect.  This  offer  was 
rejected  by  the  court,  an  exception  was  taken  by  the  plaintiffs,  and  it 
forms  the  subject  of  the  ist  assignment  of  errors. 

The  declarations  of  a  party  to  the  suit  as  to  the  existence  of  a  part- 
nership are  unquestionably  competent  to  prove  him  to  have  been  a 
member  of  the  alleged  firm,  and  who  were  admitted  by  him  to  have 
been  the  persons  composing  it.  Such  declarations  are  not,  however, 
competent  evidence  against  the  others,  and  it  is  the  duty  of  the  court 
so  to  instruct  the  jury.  Taylor  v.  Henderson,  17  S.  &  R.  453;  John- 
ston V.  Warden,  3  Watts  loi ;  Haughey  v.  Strickler,  2  W.  &  S.  411; 
Lenhart  v.  Allen,  8  Casey  312;  Bowers  v.  Still,  13  Wright  65;  Cross- 
grove  V.  Himmelrich,  4  P.  F.  Smith  203.  The  same  rule  has  been  ap- 
plied to  the  admissions  of  a  defendant  not  served  with  process,  and 
not,  therefore,  a  party  to  the  issue:  Porter  v.  Wilson,  i  Harris  641. 
The  objection  taken  below  was  that  the  acts  and  declarations  of  Van- 


636  Cases  on  Evidence 

dervier  and  Thorn  should  have  been  first  given  in  evidence  to  charge 
them;  but  it  is  plain  that  the  same  objection  would  have  been  equally 
good  against  their  separate  declarations  to  connect  the  others  with 
them.  The  acts  or  declarations  of  each  must,  in  the  nature  of  things, 
be  given  in  evidence  separately  and  successively;  otherwise,  nothing 
of  the  kind  would  be  available  but  a  joint  declaration  by  all  together. 
Practically,  it  would  exclude  all  such  evidence.  If  A  admits  that  he 
is  a  partner  with  B  and  B  admits  that  he  is  a  partner  with  A,  it  is 
evidence  of  a  partnership  as  to  both:  Drennen  v.  House,  5  Wright 
30,  and  it  matters  not  which  declaration  is  first  offered.  Nor  does 
the  fact  that  there  was  an  agreement  in  writing  between  the  defend- 
ants prevent  the  admission  of  this  species  of  testimony.  This  was  ex- 
pressly so  held  in  Widdifield  v.  Widdifield,  2  Binney  245.  "Might  not 
evidence  be  given,"  asks  Chief  Justice  Tilghman,  "of  their  confession 
of  a  general  partnership  subsequent  to  the  articles,  or  of  their  acting 
In  such  a  manner  as  was  inconsistent  with  anything  but  a  general  part- 
nership? How  are  the  world  to  know  anything  about  the  instruments 
of  writing  made  in  secret  between  persons  in  trade?"  We  think  there 
was  error,  therefore,  in  the  rejection  of  this  offer. 

The  2nd  error  assigned  is  in  rejecting  a  letter  written  by  Daniel 
Tracy  to  third  persons  for  the  purpose  of  show^ing  a  partnership  with 
Vandervier  and  Thorn.  But  this  letter,  or  a  copy  of  it,  should  have 
been  attached  to  the  bill  of  exceptions  by  a  pro  ut,  in  order  to  enable 
this  court  to  see  whether  it  did  tend  to  show  that  for  which  it  was 
offered:  Stafford  v.  Stafford,  3  Casey  144;  Gratz  v.  Gratz,  4  Rawle 
411 ;  Rice  v.  Groff,  8  P.  F,  Smith  116.  It  is  true  that  this  is  not  the 
reason  stated  by  the  learned  judge  for  the  rejection;  but  as  Mr,  Jus- 
tice Kennedy  remarks  in  Gratz  v.  Gratz,  it  would  not  be  right  to  test 
the  admissibility  of  evidence  by  the  insufficiency  of  the  reason  assigned 
by  the  court  below  for  rejecting  it.  A  right  judgment  is  not  to  be 
reversed  on  account  of  a  wrong  reason  given  for  rendering  it. 

Reversed. 


PETERS  &  ROBERTS   FURNITURE   CO.  v.   QUEEN   CITY 

INS,  CO. 

6s  Ore.  s^2.     (1912) 

This  is  an  action  by  the  Peters  &  Roberts  Furniture  Company,  a 
corporation,   against   the   Queen   City   Fire    Insurance    Company,   of 


The  Best  Evidence  Rui^e  637 

Sioux  Falls,  South  Dakota,  a  corporation,  to  recover  on  a  fire  insur- 
ance policy.  The  cause  was  tried  before  a  jury,  resulting  in  a  verdict 
and  judgment  in  favor  of  plaintiff  for  $2,406.61,  from  which  defend- 
ant appeals. 

Bean,  J.  The  bill  of  exceptions  also  discloses  that  counsel  for  plain- 
tiff objected  to  the  introduction  of  evidence  tending  to  show  that  the 
policy  of  insurance  was  issued  on  the  condition  that  the  Spring  Gar- 
den policy  should  be  canceled,  and  on  the  further  condition  that  the 
policy  spoke  for  itself,  and  could  not  be  contradicted  by  parol  testi- 
mony. The  policy  was  introduced  in  evidence  by  plaintiff,  and  con- 
tains the  clause,  "Other  concurrent  insurance  permitted."  The  policy 
does  not  purport  to  limit  the  amount  of  such  concurrent  insurance, 
and  we  think  the  testimony  in  regard  to  the  cancellation  of  the  Spring 
Garden  policy  was  in  direct  contradiction  to  the  terms  of  the  policy  in 
suit.  Neither  does  the  policy  contain  any  clause  or  condition  that  it 
should  be  approved  by  one  W.  E.  Thomas,  or  any  third  person.  We 
think  that  the  testimony  offered,  tending  to  show  that  Mr.  Thomas 
had  not  approved  the  policy,  was  incompetent,  under  the  familiar  rule, 
that,  where  parties  have  plainly  reduced  their  contract  to  writing,  all 
the  terms  and  conditions  thereof  will  be  presumed  to  be  included  in 
the  memorandum. 

The  defendant  also  assigns  as  error  the  ruling  of  the  court  in  re- 
ceiving secondary  evidence  of  the  contents  of  the  proof  of  loss  without 
producing  the  original.  It  is  shown  by  the  evidence  that  the  originals 
of  these  documents  were  in  the  possession  of  defendant  at  the  com- 
pany's home  office  in  South  Dakota.  Defendant  claims  that  the  notice 
to  produce  the  same  did  not  allow  sufficient  time  to  do  so.  Under  Sec- 
tion 782,  L.  O.  L.  a  party  is  permitted  to  introduce  secondary  evidence 
of  a  writing  which  is  in  the  custody  of  the  adverse  party,  if  he  fails 
to  produce  the  same  after  reasonable  notice  to  do  so.  It  has  been  held 
that  where  it  is  apparent  from  the  face  of  the  pleadings  that  a  writ- 
ing in  the  custody  of  one  party  will  be  required  at  the  trial  of  the 
cause,  by  the  other  party,  the  pleadings  themselves  are  sufficient  notice 
to  that  party  to  produce  the  document  at  the  trial,  and,  if  he  fails  to  do 
so,  secondary  evidence  as  to  its  contents  is  admissible,  Wigmore,  Evi- 
dence, sec.  1305;  Continental  Life  Ins.  Co.  v.  Rogers,  119  111.  474  (10 
N.  E.  242;  59  Am.  Rep.  8to)  ;  Zipp  v.  Colchester  Rubber  Co.,  12  S. 
D.  (80  N.  W.  367).  It  was  but  a  reasonable  expectation  that,  when 
the  action  was  brought  against  the  defendant  upon  the  policy  the 
officers  of  the  company  would  have  the  documents  relating  to  the  is- 
sues, at  the  place  of  trial,  so  that  the  same  might  be  produced  upon  two 


638  Cases  on  Evidence 

or  three  days  notice.    We  cannot  say  that  there  was  prejudicial  error 
in  this  ruHng. 

The  defendant  also  assigns  as  error  the  receiving  of  secondary  evi- 
dence of  the  contents  of  two  policies  of  concurrent  insurance,  without 
producing  the  originals.  It  is  shown  by  the  testimony  of  the  local 
agents  of  the  insurance  companies,  whose  policies  were  sought  to  be 
produced,  that  the  originals  were  in  London,  England,  and  in  Phila- 
delphia, Pa.  Both  plaintiff  and  defendant  in  this  case  allege  that  there 
was  other  concurrent  insurance  upon  the  property  covered  by  the  pol- 
icy in  question.  In  ascertaining  the  amount,  both  parties  were  inter- 
ested. Under  such  circumstances,  a  showing  that  the  writing  is  outside 
of  the  State  should  be  a  sufficient  excuse  for  the  nonproduction  of  the 
original  documents  to  permit  secondary  evidence.  Mr.  Justice  Bean 
in  Wiseman  v.  N.  P.  R.  R.  Co.,  20  Ore.  425,  at  page  429  (26  Pac.  272, 
at  page  274;  23  Am.  St.  Rep.  135),  says: 

"The  degree  of  diligence  which  shall  be  considered  necessary,  in  any 
case  will  depend  upon  the  character  and  importance  of  the  document, 
the  purposes  for  which  it  is  expected  to  be  used,  and  the  place  where  a 
paper  of  that  kind  may  naturally  be  supposed  to  be  found.  If  the  doc- 
ument be  a  valuable  and  important  one,  which  the  owner  would  be 
likely  to  preserve,  a  more  diligent  search  will  be  required  than  if  the 
document  is  of  little  or  no  value.  The  purposes  for  which  it  is  pro- 
posed to  use  it  on  the  trial  will  also  have  an  important  bearing  in  de- 
termining the  degree  of  diligence  required.  If  the  cause  of  action  or 
defense  is  founded  on  the  supposed  writing,  the  party  offering  the  evi- 
dence will  be  required  to  show  a  greater  degree  of  diligence  in  the  at- 
tempt to  produce  the  original  than  if  it  is  desired  to  be  used  as  evidence 
in  some  collateral  matter." 

The  evidence  of  the  contents  of  these  policies  was  offered  upon  a 
collateral  question  in  which  both  parties  were  interested.  Therefore, 
under  such  circumstances,  secondary  evidence  of  their  contents  was 
admissible  upon  the  showing  of  diligence  made.  These  last  two  ques- 
tions were  peculiarly  for  the  trial  judge  to  finally  determine.  Wig- 
more,  Evidence,  sec.  1253. 

It  does  not  appear  that  the  admission  of  this  testimony  was  injuri- 
ous to  any  substantial  right  of  defendant,  and  therefore  does  not 
amount  to  reversible  error  in  any  event.  Koshland  v.  Hartford  Ins. 
Co.,  31  Or.  402  (49  Pac.  866)  ;  Krewson  v.  Purdo,  15  Or.  589  (16 
Pac.  480)  ;  Hudson  v.  Goodale,  22  Or.  68,  73  (29  Pac.  70). 

Affirmed. 


The  Best  Evidence  Rule  639 

HOLLOMAN  v.  SOUTHERN  RY.  CO. 
iy2  N.  C.  57-?.     (1916) 

The  action  was  brought  for  the  recovery  of  certain  knitting  mill 
machinery  which  was  shipped  from  Raleigh,  N.  C,  to  the  plaintiff  at 
Kernersville,  N.  C.  When  the  machinery  arrived  at  Kernersville  it 
was  found  to  be  in  a  damaged  condition,  and  plaintiff  refused  to  re- 
ceive it,  according  to  plaintiff's  version  of  the  facts,  unless  the  de- 
fendant would  take  a  qualified  receipt  for  it,  showing  its  bad  condition, 
which  defendant  declined  to  do.  The  machinery  was,  therefore,  placed 
in  defendant's  warehouse.  Plaintiff  brought  suit  in  Guilford  Superior 
Court  to  recover  damages  for  the  injury  to  the  machinery,  and  got  a 
judgment  for  $1,500. 

Walker,  J.,  after  stating  the  case:  The  plaintiff,  in  brief,  states 
his  contention  as  follows : 

"The  judgment  in  this  case  is  clearly  erroneous  in  adjudging  that 
the  defendant  is  entitled  to  recover  storage  charges,  because : 

"i.  The  defendant's  right  to  recover  storage  charges  is  dependent 
upon  notice  of  the  arrival  of  the  shipment  in  accordance  with  the  rules 
of  the  Corporation  Commission;  and  there  was  no  competent  evidence 
to  prove  such  notice. 

"2.  The  defendant  was  estopped  from  asserting  the  right  to  claim 
storage  charges. 

"3.  The  court  decided  as  a  matter  of  law  that  the  right  to  charge 
storage  had  not  been  waived." 

We  are  of  the  opinion  that  none  of  these  several  contentions  should 
prevail.  There  was  ample  evidence  that  notice  of  the  arrival  of  the 
machinery  was  properly  given.  This  was  done  by  postal  card  prop- 
erly addressed  and  mailed  and  presumed  to  have  been  received  by  the 
plaintiff,  in  the  absence  of  evidence  that  it  was  not.  Model  Mill  Co. 
V.  Webb,  164  N.  C.  87;  Trust  Co.  v.  Bank,  166  N.  C.  112.  It  has 
been  held  that  where  the  consignee  has  actual  notice  that  the  goods 
have  arrived  and  that  the  carrier  is  ready  to  deliver  them  at  his  depot, 
it  dispenses  with  any  formal  written  notice  of  the  fact;  nor  could  he 
demand  it,  4  R.  C.  L.,  p.  755 ;  Normile  v.  N.  P.  Railroad  Co.,  67  L. 
R.  A.,  271  ;  but  we  do  not  decide  as  to  this  view,  as  we  have  held  that 
sufficient  notice  was  given.  Plaintiff  objected  to  oral  evidence  in  re- 
gard to  mailing  the  postal  card  announcing  the  arrival  of  the  ma- 
chinery ;  but  this  position  is  not  tenable,  as  the  mailing  and  contents 
of  the  postal  card  are  matters  collateral  to  the  issue  and  not  the  sub- 


640  Cases  on  Evidence 

ject-matter  of  the  litigation.  It  was  held  in  Ledford  v.  Emerson,  138 
N.  C.  502,  that  the  rule  excluding  parol  evidence  as  to  the  contents 
of  a  written  instrument  applies  only  in  actions  between  parties  to  the 
writing,  when  the  enforcement  of  any  obligation  created  by  it  is  sub- 
stantially the  cause  of  action,  i  Greenleaf  on  Ev.,  275,  279;  Pollock 
V.  Wilcox,  69  N.  C.  50;  Reynolds  v.  Magness,  24  N,  C.  26;  Garden  v. 
McConnell,  116  N.  C.  875;  Belding  v.  Archer,  131  N.  C.  287;  S.  v. 
Credile,  91  N.  C,  640;  Jones  v.  Call,  93  N.  C.  170.  The  last  two  cases 
related  to  notices,  and  it  was  there  held  that  the  rule  requiring  the  pro- 
duction of  the  writing  itself  as  the  best  proof  of  what  it  contains  does 
not  extend  to  mere  notices,  which  persons  are  not  expected  to  keep. 
I  Greenleaf  on  Ev.,  sec.  561. 
There  was  no  error  in  the  rulings  of  the  court. 


BUTLER  V.  MAIL  &  EXPRESS  PUB.  CO. 
iji  N.  Y.  208.     (1902) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  November  14,  1900, 
affirming  a  judgment  in  favor  of  plaintiflf  entered  upon  a  verdict  and 
an  order  denying  a  motion  for  a  new  trial. 

CuLLEN,  J.  The  complaint. alleges  that  on  twenty-nine  different  oc- 
casions the  defendant,  in  consideration  of  one  hundred  dollars  paid  to 
it  by  the  plaintiff,  agreed  to  give  him  a  hundred  dollars  worth  of  ad- 
vertising in  a  paper  published  in  New  York  City  known  as  the  Mail 
and  Express;  that  the  defendant  thereafter  refused  to  do  any  adver- 
tising for  the  plaintiff  or  to  return  to  him  the  money  so  paid;  and 
judgment  was  demanded  for  the  recovery  of  the  sum  of  $2,900, 
with  interest.  The  defendant  answered  alleging  that  the  sums  paid 
by  the  plaintiff  were  paid,  not  in  consideration  of  advertising  there- 
after to  be  furnished,  but  in  satisfaction  of  a  judgment  that  the  de- 
fendant had  recovered  against  the  plaintiff. 

At  the  close  of  the  evidence  the  defendant  moved  to  dismiss  the  com- 
plaint on  the  ground  that  the  alleged  agreement  to  give  the  plaintiff 
advertising  space  was  without  consideration.  The  motion  was  denied 
and  the  defendant  excepted.  The  trial  court  submitted  four  questions 
of  fact  to  the  jury,  the  first  of  which  was :  "Was  there  an  agreement 
of  compromise  between  the  plaintiff  and  the  defendant  by  which  it 


Ths  Best  Evidence  Rui.e  641 

was  agreed  that  if  the  plaintiff  would  pay  the  amount  included  in  the 
judgment,  the  defendant  would,  as  the  payments  were  made,  issue  due 
bills  for  advertising  for  the  different  amounts  paid?"  The  others  re- 
lated to  the  payments  by  the  plaintiff,  the  issue  by  the  defendant  of  the 
due  bills  for  advertising  and  the  defendant's  refusal  to  perform,  all  of 
which  were  found^in  favor  of  the  plaintiff.  Thereupon  the  court  di- 
rected a  general  verdict  for  the  plaintiff.  The  judgment  entered  on 
that  verdict  was  unanimously  affirmed  by  the  Appellate  Division  and 
an  appeal  from  such  affirmance  taken  to  this  court. 

The  unanimous  affirmance  below  precludes  us  from  passing  upon 
the  appellant's  exceptions  to  the  denial  by  the  trial  court  of  the  motion 
to  dismiss  the  complaint.  Nor  is  the  interesting  question  whether  the 
special  findings  of  the  jury  were  sufficient  to  authorize  the  direction  of 
a  general  verdict  by  the  trial  court  presented  to  us,  because  the  record 
shows  no  exception  to  that  direction.  There  is,  however,  an  exception 
to  the  admission  of  evidence  which  we  deem  fatal  to  the  judgment. 
The  plaintiff,  against  the  objection  and  over  the  exception  of  the  de- 
fendant, was  allowed  to  testify  to  the  contents  of  an  alleged  written 
stipulation  by  which  he  was  to  be  permitted  to  pay  the  defendant's 
claim  at  the  rate  of  $500  a  month,  either  in  money  or  by  furnishing 
advertising  to  that  amount.  The  making  of  such  a  stipulation  was  de- 
nied by  the  defendant.  The  plaintiff  testified  that  he  had  last  seen  the 
stipulation  with  Messrs.  Ormiston  &  Dorset,  his  attorneys  in  the  ac- 
tion against  him.  He  stated  that  the  attorneys  had  promised  to  send  it 
to  him  if  they  found  it,  but  no  evidence  was  produced  to  show  that  the 
stipulation  had  been  lost  or  that  at  the  time  of  the  trial  it  was  not  in 
the  possession  of  Ormiston  &  Dorset  and  could  not  be  produced.  We 
do  not  see  that  there  is  any  thing  to  be  said  in  defense  of  the  ruling 
by  which  this  testimony  was  admitted. 

The  judgment  appealed  from  should  be  reversed,  and  new  trial 
granted,  co'sts  to  abide  the  event. 


GROCERY  CO.  v.  BRADFORD. 

70  W.   Va.  496.     (191 2) 

Action  by  the  Star  Grocery  Company  against  W.  Bradford  and  an- 
other.   Judgment  for  plaintiff,  and  defendants  bring  error. 

PoEFENBARGER,  J.     The  bond  constituting  the  basis  of  this  action 


642  Cases  on  Evidence 

and  given  by  a  tfaveling  salesman  to  secure  faithful  performance  of 
his  written  contract  with  his  principal,  contains,  in  the  obligatory 
clause  thereof,  the  name  of  the  salesman,  described  as  principal,  and 
the  condition  recites  his  employment,  his  duty  to  collect  accounts  for 
his  employer  and  the  existence  of  an  article  of  agreement  between 
them,  giving  its  date,  but  is  signed  by  the  two  defendants  herein  only 
as  sureties. 

Wilson  defaulted  and  left  the  country.  His  successor  as  salesman 
for  the  territory  he  had  traveled  called  upon  the  customers  of  his  em- 
ployer and  obtained  from  them  evidence  of  the  collections  made  by 
Wilson  in  the  form  of  invoices  receipted  by  him  and  checks  in  pay- 
ment of  invoices,  made  payable  to  his  employer  and  collected  by  him, 
after  his  endorsement  of  his  employer's  name  by  him  as  agent.  These 
receipted  invoices  and  checks  were  admitted  as  evidence  of  liability  on 
the  bond.  A  statement  in  the  handwriting  of  Wilson,  showing  a  bal- 
ance against  him  of  $460.75,  for  which  he  gave  his  check,  together  with 
the  protested  check,  were  also  introduced  as  evidence,  supplemented 
by  proof  of  lack  of  funds  in  the  bank  on  which  the  check  was  drawn 
to  pay  it.  In  one  instance,  the  customer  testified  to  the  payment  of  a 
bill  not  accounted  for  by  Wilson.  In  all  the  instances  in  which  checks 
appeared  to  have  been  given  and  endorsements  made  by  Wilson,  hi^- 
hand  writing  was  proved.  In  addition  to  this  evidence,  the  bookkeeper 
of  the  employer,  with  the  books  in  his  possession  and  at  hand,  testified 
to  the  delivery  and  shipment  of  all  the  goods,  the  purchase  money  of 
which  was  shown  to  have  been  collected  as  aforesaid.  Admissibility 
and  sufficiency  of  this  evidence  are  challenged  on  account  of  its  alleged 
secondary  character.  It  is  unnecessary  to  enter  upon  an  inquiry  as  to 
the  classification  of  evidence  referred  to  in  the  brief.  The  receipts, 
checks  and  statement  in  the  handwriting  of  the  principal  constitute 
admissions  by  him,  made  within  the  period  of  his  employment  and  in 
the  course  thereof,  and  are  admissible  against  the  sureties,  according 
to  all  authority  and  sufficient,  in  the  absence  of  any  contradiction  there- 
of, to  fix  liability  upon  them.  "Accounts,  entries  and  written  state- 
ments by  the  principal  are  prima  facie'  evidence  against  his  sureties, 
in  some  states  being  conclusive."  32  Cyc.  137.  See  also  Brandt  on 
Suretyship,  sees.  798-800;  i  Greenleaf  Ev.,  sees.  187,  188.  To  the  ad- 
mission in  argument  of  the  admissibility  of  this  evidence  against  Wil- 
son, if  he  were  a  party,  we  add  these  authorities,  conclusively  showing 
it  to  be  likewise  admissible  against  its  sureties.  Clearly  admissible, 
covering  the  full  amount  of  the  recovery  and  wholly  uncontradicted 
it  precludes  any  possible  verdict,  other  than  the  one  rendered,  and, 


The  Best  Evidence  Rule  643 

therefore,  the  error,  if  any,  in  admitting  the  testimony  of  the  book- 
keeper as  to  the  delivery  of  the  goods  was  obviously  harmless.  Hence 
there  is  no  occasion  for  inquiry  as  to  its  admissibility. 

The  testimony  of  McConnanghey,  president  of  the  plaintiff  company, 
was  objected  to  for  lack  of  documentary  proof  of  his  position  as  pres- 
ident. According  to  well  settled  practice,  his  own  evidence  as  to  that 
was  sufficient  to  establish  it  prima  facie,  because  the  fact  was  collateral 
in  character.  His  office  in  the  corporation  was  not  in  issue.  The  sole 
purpose  of  proof  of  his  position  was  to  show  how  or  why  he  had  done 
certain  things  and  possessed  certain  knowledge.  To  establish  such  a 
status  for  such  purpose,  the  highest  and  best  evidence  is  not  required. 
Generally,  it  is  conceded.  In  qualifying  experts,  physicians  and  law- 
yers are  not  required  to  produce  their  licenses.  Their  oral  testimony 
suffices  everywhere. 

Affirmed. 


DICKINSON  V.  WHITE. 
^5  N.  Dak.  323.    (1913) 


FiSK,  J.  The  city  of  Dickinson  sues  to  recover  against  J.  S.  White, 
its  ex-city  treasurer,  and  against  his  surety,  the  Northern  Trust  Com- 
pany, upon  certain  official  bonds  given  by  the  said  White  as  such  city 
treasurer,  it  being  plaintiff's  contention  that  the  said  White  defaulted 
and  failed  to  account  for  city  funds  collected  and  received  by  him  in 
his  said  official  capacity. 

The  defendant  White  was  not  served  with  process,  and  made  no  ap- 
pearance in  the  action,  and  the  Northern  Trust  Company  alone  ap- 
peals. 

A  jury  was  waived  and  the  cause  tried  to  the  court,  resulting  in  find- 
ings and  conclusions  favorable  to  the  plaintiff  on  the  second  and  third 
causes  of  action,  but  holding  that  the  first  cause  of  action  was,  at  the 
time  this  action  was  commenced,  barred  by  the  statute  of  limitations. 

To  prove  the  alleged  shortage  under  the  second  count,  plaintiff 
offered  in  evidence  Exhibit  9,  purporting  to  be  a  report  of  J.S.  White 
to  the  city  couttcil  for  March,  1908,  and  Exhibit  13  which  purports  to 
be  a  receipt  by  White  to  the  county  treasurer,  dated  March  31,  1908, 
for  taxes. 

To  prove  the  alleged  shortage  under  the  third  count,  plaintiff  offered 


644  Cases  on  Evidence 

in  evidence  Exhibit  lo  purporting  to  be  a  report  by  White  to  the  city 
council  for  February,  1909,  and  Exhibit  14,  which  purports  to  be  a  re- 
ceipt by  White  to  the  county  treasurer  dated  February  23,  1909.  Also 
under  the  third  count  plaintiff  offered  in  evidence  Exhibit  15,  purport- 
ing to  be  a  warrant  for  $2,150,  the  slip  showing  its  deposit  to  the  credit 
of  J.  S.  White,  city  treasurer,  marked  19,  the  debit  slip  of  the  bank 
marked  Exhibit  20,  and  the  page  of  the  cash  book  of  the  city  marked 
Exhibit  21,  all  of  which  were  objected  to.  Exhibits  20  and  21  were 
made  February  10,  1910.  White  ceased  to  act  as  city  treasurer  De- 
cember  16,  1909. 

The  purported  reports  of  White  to  the  city  council,  Exhibits  9  and 
10,  were  received  in  evidence  over  objection  that  they  were  incompetent, 
not  the  best  evidence,  and  shown  to  be  mere  copies.  The  books  of  the 
city  or  of  White  were  not  produced  in  court  nor  offered  in  evidence. 
The  purported  receipts  to  the  county  treasurer,  Exhibits  13  and  14, 
were  received  in  evidence  over  objection  that  they  were  incompetent, 
and  no  proper  foundation  laid. 

Assignments  numbered  i,  2  and  12  relate  to  certain  rulings  of  the 
trial  court  admitting  in  evidence  Exhibits  9,  10,  13,  and  14.  This  proof 
was  offered  for  the  purpose  of  proving  the  default  of  $645.11  alleged 
in  the  second  cause  of  action,  and  the  default  of  $909.88  alleged  in  the 
third  cause  of  action.  Exhibits  13  and  14  are  receipts  given  by  White 
as  city  treasurer  to  the  county  treasurer  for  moneys  received  by  the 
former  from  the  latter.  White  signed  such  receipts,  and  they  were 
shown  to  be  records  in  the  office  of  the  county  treasurer. 

These  receipts  furnish  prima  facie  evidence  of  the  fact  that  White 
as  city  treasurer,  received  from  the  county  treasurer  the  amounts 
therein  mentioned.  Rev.  Codes  1905,  sees,  7298  and  7299,  It  was 
White's  duty  to  give  receipts  for  moneys  thus  received. 

Section  271 1,  Rev.  Codes  1905,  Appellant's  counsel  does  not  contro- 
vert the  correctness  of  the  above  proposition;  but  they  contend  that 
this  was  not  the  propr  method  of  proving  the  alleged  shortages.  Plain- 
tiff, after  introducing  the  above  receipts,  offered  in  evidence  Exhibits 
9  and  10,  which  consist  of  reports  made  by  White,  as  city  treasurer, 
to  the  mayor  and  city  council  of  Dickinson  on  March  31,  1908,  and  on 
February  27,  1909,  purporting  to  show  the  receipts  and  disbursements 
made  by  him  as  such  city  treasurer  for  the  months  of  March  1908,  and 
February,  1909,  respectively,  and  in  which  reports  White  accounts  and 
reports  for  the  sum  of  only  $5,640  for  moneys  received  from  the 
county  treasurer  for  taxes  in  March,  1908,  whereas  Exhibit  13  shows 
that  he  received  $6,285.11  making  a  difference  of  $645.11  as  found  by 


The  Best  Evidence  Rule  645 

the  tiial  court  in  its  fifth  finding  of  fact;  and,  by  Exhibit  10  he  ac- 
counts for  and  reports  as  having  received  from  the  county  treasure! 
the  sum  of  only  $67.20,  whereas  by  the  receipt  Exhibit  14  he  admits 
that  he  received  $909.88,  making  a  difference  of  $842.68,  Counsel  for 
appellant  urge  that  this  method  of  proving  shortages  is  improper,  and 
that  plaintiff  should  have  shown  the  total  amount  of  money  received 
and  expended  by  White  during  the  terms  of  the  bonds,  or  either  of 
them  and  they  emphasize  the  fact  that  there  was  no  proof  offered  as 
to  what  amount  White  had  paid  over  and  accounted  for  to  his  suc- 
cessor in  office,  nor  of  the  amount  for  which  he  thus  should  have  paid 
out  and  accounted  for,  and  that  the  books  of  the  city  were  not  offered 
in  evidence  or  produced  in  court  for  the  purpose  of  showing  these 
facts.  They  also  contend  that  Exhibits  9  and  10  were  improperly  re-, 
ceived  in  evidence,  as  they  were  not  the  original  records,  and  were  in- 
competent, and  not  the  best  evidence,  and  no  foundation  had  been  laid 
for  their  introduction.  We  think  appellant's  contentions  are  untenable. 
The  proof  offered  by  the  plaintiff,  in  the  absence  of  any  showing  to  the 
contrary,  constituted  prima  facie  evidence  that  White  had  not  ac- 
counted for  the  moneys  thus  received  by  him  as  shown  by  said  Ex- 
hibits 13  and  14,  and  that  there  were,  therefore,  shortages  in  the  sums 
above  mentioned.  While  the  method  of  proof  suggested  by  appellant's 
counsel  of  establishing  such  alleged  shortages  would  be  proper  and 
perhaps  preferable,  such  method  is  not  the  sole  and  only  method  of 
proving  such  facts,  and  it  was  perfectly  proper  for  plaintiff  to  show 
that  White  had  receipted  for  specific  moneys  belonging  to  the  city, 
and  had  reported  to  the  mayor  and  city  council  lesser  amounts  than 
those  for  which  he  had  thus  receipted.  As  before  stated,  in  the  absence 
of  proof  to  the  contrary,  this  constituted  prima  facie  evidence  of  the 
existence  of  shortages  and  the  amount  thereof;  and  if  such  shortages 
had  been  subsequently  made  up  or  adjusted,  such  fact  could  have  been 
shown  by  the  defendant; 

Sufficient  foundation  for  the  introduction  of  all  of  the  Exhibits 
aforesaid  was  laid  by  the  testimony  of  White,  who  identified  all  of 
such  Exhibits  as  the  receipts  and  reports  made  and  signed  by  him,  and 
that  the  difference  in  the  amounts  received,  and  reported  as  having 
been  received,  has  never  been  made  up.  Exhibits  9  and  10  are  the 
original  reports  made  by  White,  as  city  treasurer,  and  the  objections 
to  their  introduction  in  evidence  are  clearly  untenable.  The  fact  that 
in  making  such  reports  the  data  therefor  were  taken  or  copied  from 
the  books  kept  by  him  as  city  treasurer  does  not  render  them  inad- 


646  Cases  on  Evidence 

missible  as  secondary  evidence.    They  were  made  pursuant  to  official 
duty,  and  were  originals,  and  not  mere  copies. 

Reversed  on  another  ground. 


PRINGEY  V.  GUSS. 
16  Okla.  82.     (1905) 


BuRWELL,  J.  This  is  an  action  by  the  plaintiffs  in  error  against  U. 
C.  Guss  to  declare  a  resulting  trust;  it  being  the  contention  of  the  ap- 
pellants that  the  appellee  purchased  the  s.  e.  %  of  sec.  9,  twp.  15,  n.  of 
r.  5  east  in  Lincoln  county,  Oklahoma,  from  J.  E.  Ross,  the  former 
owner  of  the  legal  title  with  full  knowledge  that  he  had,  prior  thereto, 
sold  it  to  these  appellants  and  received  a  part  of  the  purchase  price 
therefor.  The  contract  of  sale  under  which  appellants'  claim  was 
signed  in  duplicate  by  Joseph  C.  Pringey,  and  Mrs.  Ida  Ross  (wife  of 
J.  E.  Ross),  and  sent  to  J.  E.  Ross  for  his  signature.  Pringey  never 
received  either  of  them,  but  he  contends  that  he  received  letters  from 
J.  E.  Ross  accepting  the  terms  of  the  contract,  and  that  he  is  bound 
thereby ;  but  the  letters  received  by  Pringey  and  offered  in  evidence  do 
not  alone  constitute  a  sale  of  the  land.  It  is  impossible  to  determine 
from  them  what  the  terms  of  sale  were;  hence  the  absolute  necessity 
on  the  part  of  the  appellants  to  prove  the  contract  of  sale.  The  evi- 
dence clearly  showed  that  the  original  contracts  were  last  in  the  pos- 
session of  J.  E.  Ross  who  lived  at  Genoa,  Nebraska;  and  because  Ross 
lived  outside  of  Oklahoma  Territory,  the  appellants  sought  to  intro- 
duce a  carbon  copy  of  the  contracts  without  any  showing  of  diligence 
to  procure  the  originals  or  one  of  them.  The  trial  court  excluded  the 
carbon  copy,  and  finally,  when  the  appellants  rested,  a  demurrer  was 
sustained  to  the  evidence  and  the  cause  dismissed  at  plaintiffs'  cost. 
In  both  of  these  rulings  the  court  was  correct.  Without  proving  the 
contract,  the  plaintiffs  could  not  recover,  and  they  could  not  use  an 
unsigned  carbon  copy  without  first  showing  diligence  to  procure  the 
original. 

We  do  not  contend  that,  where  a  written  instrument  is  only  col- 
laterally involved,  and  the  original  is  in  the  possession  of  another  in  a 
different  state,  in  no  circumstances  can  secondary  evidence  be  admitted 
to  prove  its  contents ;  but  where  a  party  can  only  recover  under  a  con- 
tract, that  is,  where  the  contract  itself  is  directly  involved,  secondary 


The  Best  Evidence  Rule  647 

evidence  will  not  be  received,  until  it  be  first  shown  that  the  original 
is  lost,  or  beyond  the  control  of  the  party  wishing  to  prove  its  content ; 
and  the  Supreme  Court  of  the  United  States,  in  the  case  of  Turner  v. 
Yates,  16  Howard  26,  clearly  adopted  this  rule. 

It  is  true  that  there  are  authorities  to  the  contrary',  but  the  rule  here- 
in announced  appeals  more  strongly  to  our  view  of  what  the  law  ought 
to  be,  and  we  find  it  supported  not  only  by  the  Supreme  Court  of  the 
United  States  but  by  other  courts  of  high  standing.  John  Kearney  v. 
The  Mayor  of  the  City  of  New  York,  92  N.  Y.  617;  Shaw  v.  ]\Iason, 
10  Kan.  184;  Dickenson  v.  Breeden,  25  111.  167;  McGregor  v.  Mont- 
gomery, 4  Penn.  St.  237 ;  Londoner  et  al.  v.  Stewart,  3  Colo.  47 ;  Wood 
V.  CuUen,  13  Minn.  394. 

The  contract  not  having  been  proved,  the  evidence  introduced  upon 
the  trial  was  not  suffkient  to  support  a  judgment  in  favor  of  the  plain* 
tififs,  and  the  demurrer  to  their  evidence  was  properly  sustained. 

The  judgment  of  the  lower  court  is  hereby  affirmed,  at  the  cost  of 
appellants. 


YOUNG  V.  THE  PEOPLE. 
221  III.  57.     (1906) 


Hand,  J.  The  first  contention  of  plaintiflFs  in  error  is  that  the  evi- 
dence is  not  sufficient  to  sustain  a  conviction.  Greear  admits  that  he 
formed  a  conspiracy  with  Keefe  and  IMcCormick  to  defraud  the  book- 
makers in  Chicago,  and  Young  is  a  confessed  gambler.  The  jury  saw 
and  heard  them  and  the  witnesses  produced  by  them  testify,  and  while 
the  direct  evidence  that  Young  was  connected  with  McCormick  and 
Keefe  is  very  meager,  in  view  of  all  the  circumstances  proven  on  the 
trial,  if  no  error  of  law  had  been  committed  during  the  trial  we  would 
not  reverse  the  case  on  the  ground  that  the  evidence  was  not  sufficient 
to  sustain  the  verdict.  The  only  evidence  tending  to  connect  Young 
with  McCormick  and  Keefe,  and  to  show  a  conspiracy  between  Young 
McCormick  and  Keefe  to  work  the  confidence  game  upon  Greear, 
other  than  Greear's  testimony,  was  certain  evidence  in  writing  of  which 
secondary  evidence  was  admitted  upon  the  trial  in  the  place  of  the 
original  written  evidence,  and  this  secondary  evidence,  it  is  claimed  by 
plaintiffs  in  error,  was  admitted  without  a  proper  foundation  being 


648  Cases  on  Evidence 

laid  for  its  admissipn,  and  that  the  admission  of  such  secondary  evi- 
dence constitutes  reversible  error. 

Greear  testified  that  while  in  Minneapolis,  Keefe  showed  him  two 
letters  purporting  to  be  written  to  Keefs  by  McCormick,  in  one  of 
which  McCormick  said  he  wanted  Keefe  to  get  a  good,  honest  man 
with  mone}'  to  go  to  Chicago  and  make  "sure  thing"  bets  on  horse 
races.  When  asked  where  the  letter  was,  he  said  Keefe  deiitroyed  it. 
He  afterwards  said  Keefe  destroyed  one  letter,  and  afterwards  said 
Keefe  destroyed  the  letter  other  than  the  one  containing  the  statements 
above  referred  to.  His  testimony,  when  taken  as  a  whole,  clearly 
showed  that  the  last  time  he  saw  the  letter,  if  he  ever  saw  such  a  let- 
ter, it  was  in  the  possession  of  Keefe.  Objection  was  made  to  the  ad- 
mission of  parol  proof  of  the  contents  of  said  letter  on  the  ground  that 
the  evidence  showed  the  letter  was  in  the  possession  of  Keefe  when 
last  seen  by  the  witness  and  that  Keefe  had  not  been  notified  to  pro- 
duce the  letter  upon  the  trial.  The  general  rule  is,  that  parol  evidence 
cannot  be  received  of  the  contents  of  a  writing  unless  a  proper  founda- 
tion has  been  laid  for  its  admission  by  notifying  the  party  in  whose 
possession  the  writing  is,  to  produce  it  upon  the  trial  or  by  showing 
that  it  has  been  lost  or  destroyed.  No  such  foundation  was  here  laid 
with  reference  to  this  letter,  and  the  court  erred  in  permitting  parol 
proof  of  its  contents.  Holbrook  v.  Trustees  of  Schiils,  22  111.  539; 
Wright  V.  Raftree,  181  id.  464. 

The  court  also  permitted  the  State  to  introduce  in  evidence  a  copy 
of  a  telegram  purporting  to  have  been  sent  by  Keefe  from  Mankato, 
Wis.,  June  13,  1905,  to  Fred  Gondorf  (McCormick)  at  Chicago,  re- 
questing Gondorf  (McCormick)  to  meet  Keefe  the  next  day  at  10:30 
at  the  Majestic  Hotel,  without  proof  of  the  loss  of  the  original  tele- 
gram or  even  that  the  copy  offered  was  a  copy  of  the  original.  The 
copy  introduced  was  the  copy  retained  by  the  telegraph  company 
among  its  files  in  its  Chicago  office,  and  the  court  seems  to  have  en- 
tertained the  view  that  such  copy  was  the  original.  This  was  not  the 
correct  view.  It  was  not  shown  that*  Fred  Gondorf  (McCormick) 
ever  received  said  telegram,  or  that  it  was  ever  acted  upon  by  either 
Keefe,  McCormick  or  Young,  or  that  it  was  signed  or  sent  by  Keefe. 
It  was  introduced  as  the  admission  of  Keefe  that  he  knew  McCormick 
and  desired  to  have  him  meet  him.  In  order  to  bind  Keefe  it  was  nec- 
essary to  show  he  signed  or  sent  the  telegram  or  that  he  acted  on  the 
telegram  after  it  was  received,  and  the  best  evidence  of  the  contents  of 
the  telegram  was  the  original  telegram  filed  at  Mankato,  Wis.     (Mat- 


The  Best  Evidence  Rui,e  649 

teson  V.  Noyes,  25  111.  481 ;  Morgan  v.  People,  59  id.  58.)     It  was  er- 
ror to  admit  in  evidence  the  copy  of  said  telegram. 

When  Keefe  was  arrested,  a  card  was  taken  from  his  vest-pocket 
upon  which  was  written,  "L.  Y.,  3030  Indiana  avenue,  phone  Douglas 
2685,"  which  were  the  initials  of  Louis  Young,  the  number  of  his  resi- 
dence and  the  telephone  number.  The  police  officer  who  received  the 
card  from  the  officer  who  took  it  from  Keefe  testified  that  the  last 
time  he  saw  it,  which  was  four  or  five  days  before  the  trial,  he  gave 
it  to  the  assistant  State's  attorney.  Young  testified  he  had  never  seen 
the  card,  knew  nothing  of  its  contents  or  how  Keefe  came  by  it.  The 
court,  without  requiring  the  production  of  the  card  by  the  assistant 
State's  attorney  or  proof  of  its  loss  or  destruction,  over  the  objection 
of  the  plaintiflFs  in  error,  permitted  the  police  officers  to  state  what  was 
written  on  the  card  at  the  time  it  was  taken  from  Keefe.  This  evidence 
was  exceedingly  damaging  to  Young  as  it  tended  to  connect  Keefe  with 
him,  and  it  was  error  to  admit  parol  proof  of  what  was  written  on  the 
card  without  proof  of  the  loss  or  destruction  of  the  card.  Mariner 
v.  Saunders,  5  Gilm.  113;  Whitehall  v.  Smith,  24  111.  166;  Wing  v. 
Sherrer,  '/']  id.  200;  Williams  v.  Case,  79  id.  356 

For  the  errors  of  the  court  in  admitting  in  evidence  the  copy  of  said 
telegram  and  parol  proof  of  the  contents  of  said  letter  and  the  matter 
written  upon  said  card  without  the  proper  foundation  having  been  laid 
for  the  admission  of  secondary  evidence,  the  judgment  of  the  Crim- 
inal Court  will  be  reversed  and  the  cause  remanded  to  that  court  for 
a  new  trial. 

Reversed  and  remanded. 


WILSON  V.  WRIGHT. 
8  Utah  215.     (1892) 


ZanE,  C.  J.  This  action  was  brought  to  recover  the  unpaid  re- 
mainder of  the  price  of  plaintifif's  interest  in  certain  mining  claims  sold 
to  the  defendant.  The  respondent  testified  that  he  sold  and  conveyed 
his  interest  to  the  defendant  on  the  27th  of  October,  1888;  that  the  de- 
fendant at  that  time  paid  him  $1,500,  and  agreed  to  pay  $1,000  more 
when  he  should  sell  the  claims  or  find  ore  in  them ;  that  defendant  did 
find  ore  and  sold  the  claims  for  the  sum  of  $10,000.  The  defendant 
testified  that  he  paid  the  $1 ,500  at  the  time  of  the  sale  as  the  sole  con- 


650  Cases  on  Evidence 

sideration,  and  that  he  did  not  agree  to  pay  any  other  or  further  con- 
sideration. Some  time  after  the  $1,500  was  paid,  the  defendant  made 
three  different  payments  to  plaintiff,  amounting  to  $300.  The  plaintiff 
states  that  these  were  made  upon  the  $1,000.  But  the  defendant  says 
they  were  not  so  paid;  that  the  money  was  given  to  plaintiff  at  his  re- 
quest and  for  his  accommodation.  While  there  is  a  conflict  in  the  evi- 
dence as  to  the  agreement  to  pay  the  additional  $1,000,  we  are  of  the 
opinion  that  the  weight  supports  the  finding  of  the  jury,  which  was  for 
the  plaintiff  for  $700,  that  being  the  remainder  of  the  $1,000  after  de- 
ducting the  $300.  On  the  trial  of  the  cause  the  defendant  testified 
that  he  thought  the  plaintiff's  deed  to  him  for  the  property  was  left 
with  one  Jones,  to  whom  witness  sold;  that  he  had  made  diligent 
search  for  it,  and  that  it  was  not  in  witness'  possession  or  control.  On 
this  preliminary  proof  defendant's  counsel  offered  a  copy  of  the  deed 
in  evidence  duly  certified  by  the  records,  to  prove  that  the  considera- 
tion for  the  property  was  $1,500,  that  being  the  amount  mentioned  in 
the  deed.  To  the  admission  of  the  copy  in  evidence  the  plaintiff  ob- 
jected, on  the  ground  that  the  preliminary  proof  did  not  show  sufficient 
diligence  to  find  and  produce  the  original.  The  court  sustained  the  ob- 
jection, and  the  defendant  excepted,  and  assigns  the  ruling  of  the  court 
as  error.  The  consideration  named  in  the  deed  being  $1,500,  it  would 
have  corroborated  the  defendant's  testimony,  had  it  been  admitted  in 
evidence.  The  general  rule  with  respect  to  secondary  evidence  is  "that 
it  is  inadmissible  until  it  be  shown  that  the  production  of  primary  evi- 
dence is  out  of  the  party's  power."  The  party  offering  secondary  evi- 
dence must  give  some  reasonable  excuse  for  the  absence  of  the  pri- 
mary. If  the  primary  evidence  is  a  document,  its  destruction  or  loss 
must  be  shown  by  at  least  presumptive  evidence.  The  party  must  show 
that  he  has  in  good  faith  exhausted  in  a  reasonable  degree  all  the 
sources  of  information  and  means  of  discovery  which  the  nature  of  the 
case  would  naturally  suggest,  and  which  were  accessible  to  him  or  that 
it  was  out  of  his  power  to  produce  the  document.  "When  the  docu- 
ment belongs  to  the  personal  custody  of  a  particular  individual,  or  is 
proved  or  may  be  presumed  to  be  in  his  possession,  he  must  in  gen- 
eral be.  served  with  a  subpoena  duces  tecum,  and  be  sworn  to  account 
for  it."  I  Taylor  Ev.,  pp.  396,  397.  i  Greenl.  Ev.  sec.  558.  To  these 
general  rules  there  are  exceptions.  In  the  trial  of  title  to  land  the  rule 
in  the  United  States  when  not  changed  by  statute,  is :  "It  being  the 
general  practice  in  the  United  States  for  the  grantor  to  retain  his  own 
title  deeds,  instead  of  delivering  them  over  to  the  grantee,  the  grantee 
is  not  held  bound  to  produce  them ;  but  the  person  making  the  title  tq 


The  Best  Evidence  RueE  651 

lands  is  in  general  permitted  to  read  certified  copies  from  the  register 
of  all  deeds  and  instruments  under  which  he  claims,  and  to  which  he 
is  not  himself  a  party,  and  of  which  he  is  not  supposed  to  have  the 
control."  Assuming  that  this  rule  is  applicable  in  all  cases  to  the  ad- 
missibility of  copies  of  title  deeds  certified  by  the  recorder,  it  does  not 
apply  to  the  case  in  hand.  This  defendant  is  a  party  to  the  original 
deed,  and  he  has  the  right  to  its  possession,  i  Greenl.  Ev.  (4th  ed.)  sec. 
665,  note  6;  Eaton  v.  Campbell,  7  Pick.  10;  Scanlan  v.  Wright,  13  Pick. 
523;  Woodman  v.  Coolbroth,  7  Me.  181.  Reference  is  made  to  2 
Comp.  Laws  Utah,  1888,  sec.  2617:  "That  when  any  such  conveyance 
or  instrument  acknowledged  or  proved,  certified  and  recorded  in  the 
manner  prescribed  by  this  act,  and  it  shall  be  shown  to  the  court  that 
such  conveyance  or  instrument  is  lost,  or  not  within  the  control  of  the 
party  wishing  to  use  the  same,  the  record  thereof,  or  the  transcript  of 
such  record,  certified  by  the  recorder  under  the  seal  of  his  office,  may 
be  read  in  evidence  without  further  proof."  The  preliminary  proof 
does  not  show  that  the  original  deed  of  which  the  defendant  offered  the 
copy  was  lost  or  destroyed.  The  defendant  states  that  he  thought  it 
was  left  with  Mr.  Jones,  who  was  at  the  time  of  the  trial  in  the  city 
in  which  the  trial  was  had,  and  it  did  not  appear  that  inquiry  was  made 
of  him  at  any  time.  The  defendant  being  the  grantee  in  the  deed,  he 
was  entitled  to  its  possession,  as  we  have  seen;  if  he  left  it  with  Mr. 
Jones,  presumably  he  could  have  obtained  it  from  him  by  asking  him 
for  it.  If  a  party  has  the  legal  right  to  the  possession  of  a  document, 
in  a  legal  sense  it  is  within  his  control,  though  he  may  have  left  it 
with  an  agent  or  other  person,  from  whom  he  has  a  right  to  receive 
it  by  demanding  its  possession.  The  defendant  should  have  inquired 
of  Jones  for  the  deed,  and  if  in  his  possession  should  have  requested 
the  possession  or  the  use  of  it,  and  if  such  request  had  been  refused  the 
defendant  could  have  said  that  it  was  not  within  his  control.  We  hold 
that  the  ruling  of  the  court  excluding  the  copy  was  not  error.  We  find 
no  error  in  this  record,  and  therefore  the  judgment  of  the  court  below 
is  affirmed. 

Anderson,  J.,  and  Miner,  J.,  concurred. 


652  Cases  on  Evidence 

PITT  V.  EMMONS. 
Q2  Mich.  542.     (1892) 

ft 

Montgomery,  J.  The  plaintiffs  are  dealers  in  grain  at  Baltimore, 
and  the  defendants  conduct  a  similar  business  at  Detroit.  In  Septem- 
ber, 1888,  the  plaintiffs  purchased  of  the  defendants  by  sample  15  cars 
of  wheat  to  be  delivered.  Four  cars  were  delivered,  which  plaintiffs 
claim  were  not  equal  to  sample,  and  the  plaintiffs  thereupon  refusing 
to  accept  more  of  similar  wheat  as  answering  the  terms  of  the  con- 
tract, and  the  defendant  refusing  to  ship  the  wheat  of  the  grade 
claimed  by  plaintiffs,  no  more  was  shipped.  This  action  is  brought  to 
recover  damages  for  the  alleged  failure  to  fulfill  the  contract,  both  be- 
cause the  quality  of  the  wheat  was  not  up  to  grade,  as  well  as  for  the 
failure  to  dehver  the  remaining  11  cars  of  the  quality  contracted.  The 
evidence  tended  to  show  that  the  plaintiffs  would  have  realized  a  con- 
siderable profit  on  the  wheat  if  delivered,  and  of  the  quality  claimed 
by  them  to  have  been  purchased. 

The  dispute  arises  over  the  question  of  what  in  fact'  was  the  sample 
with  reference  to  which  the  contract  was  made.  Considerable  corre- 
spondence passed  between  the  parties. 

The  defendants  offered  in  evidence  an  alleged  copy  of  a  postal  card 
claimed  to  have  been  sent  by  them  to  plaintiffs  on  the  8th,  stating  that 
a  sample  of  wheat  had  been  sent  marked  "3".  It  is  evident  that  this 
postal  was  of  exceeding  importance,  for  if  in  fact  there  was  such  a 
sample  in  plaintiffs'  hands  when  the  telegrams  passed  between  the  par- 
ties the  jury  would  have  been  justified  in  finding  that  the  contract 
called  for  the  quality  of  wheat  in  this  last-named  sample.  The  plain- 
tiffs' testimony  had  been  taken  by  deposition,  and  the  plaintiffs'  office 
was  at  Baltimore,  and  the  only  notice  calling  for  the  production  of  this 
postal  card  was  served  on  the  same  day  the  copy  was  received  in  evi- 
dence, against  the  plaintiffs'  objection.  The  plaintiffs'  attorneys  dis- 
claimed any  knowledge  of  the  postal  card.  Under  the  circumstances, 
it  was  error  to  admit  a  copy.  Furgeson  v.  Hemingway,  38  Mich.  159; 
Julius  King  Optical  Co.  v.  Treat,  y2  id.  599 ;  Mortlock  v.  Williams,  76 
id.  568. 

The  judgment  will  be  reversed,  with  costs,  and  a  new  trial  ordered. 


The  Best  Evidence  Rui^e  653 

McDonald  v.  erbes. 

231  III.  2P3.     (1907) 

Hand,  J,  This  was  an  action  of  assumpsit  commenced  by  the  ap- 
pellee, against  the  appellant,  in  the  Circuit  Court  of  Vermilion  County. 
The  declaration  consisted  of  the  common  counts,  and  the  general  is- 
sue was  filed,  and  the  trial  resulted  in  a  verdict  and  judgment  in  favor 
of  the  appellee  for  $2,923.75,  which  judgment  has  been  affirmed  by 
the  Appellate  Court  for  the  Third  District. 

The  judgment,  in  part,  was  made  up  of  an  item  of  $900,  which  was 
paid  by  the  appellee  to  E.  H.  Steiger.  The  appellee  contended  said 
item  of  $900  was  paid  to  Steiger  by  him  at  the  request  of  appellant, 
and  the  appellant  contended  it  was  paid  to  Steiger  by  the  appellee  for 
his  own  benefit.  In  order  to  establish  his  contention  the  appellant 
offered  in  evidence  a  copy  of  a  written  agreement  alleged  to  have  been 
entered  into  between  the  appellant  and  appellee,  which,  upon  the  objec- 
tion of  appellee,  the  court  refused  to  admit,  on  the  ground  that  no 
sufficient  foundation  had  been  laid  for  the  admission  of  secondary  evi- 
dence of  the  contents  of  said  agreement,  and  the  refusal  of  the  court 
to  admit  in  evidence  a  copy  of  said  agreement  in  lieu  of  the  original 
is  the  sole  ground  of  reversal  relied  upon  in  this  court. 

As  a  foundation  for  the  admission  of  a  copy  of  said  agreement  in 
evidence  in  lieu  of  the  original,  the  appellant  showed  that  at  the  time 
the  agreement  was  executed  it  was  left  in  the  possession  of  Steiger, 
who  resided  at  Oshkosh,  Wisconsin,  and  that  it  has  never  been  in  the 
possession  of  either  of  the  parties  to  the  suit,  and  Steiger  testified  that 
if  he  had  the  agreement  it  was  at  his  home  in  Oshkosh.  No  effort  was 
made  by  the  appellant  to  obtain  the  original  agreement  prior  to  the 
trial,  it  being  his  contention  that  as  it  appeared  the  original  was  be- 
yond the  jurisdiction  of  the  court  and  in  the  hands  of  a  third  party, 
the  copy  thereof  was  admissible  in  evidence.  The  authorities  are  not 
in  entire  harmony  upon  the  question  at  issue  between  the  parties  to 
this  suit.  In  some  jurisdictions  the  rule  is,  that  where  it  appears  that 
an  instrument  in  writing  is  beyond  the  jurisdiction  of  the  court  and  in 
the  hands  of  a  third  party  a  copy  thereof  may  be  introduced  in  evi- 
dence in  lieu  of  the  original;  while  in  other  jurisdictions  the  rule  is, 
that  a  copy  cannot  be  admitted  in  evidence  in  lieu  of  the  original  un- 
less it  appears,  in  addition  to  the  facts  that  the  original  is  beyond  the 
jurisdiction  of  the  court  and  in  the  hands  of  a  third  party,  and  that 
due  effort  had  been  made  by  the  party  offering  the  copy  to  obtain  the 


654  .Cases  on  Evidexce 

original.  (2  Elliott  on  Evidence,  sees.  1469,  1470;  25  Am.  &  Eng. 
Encyc.  of  L. — 2nd  ed. — p.  171.)  The  rule  in  force  in  this  State,  as 
announced  in  Dickison  v.  Breeden,  25  111.  186,  Fisher  v.  Greene,  95  id. 
284,  requires  that  due  effort  must  be  made  by  the  party  who  offers  a 
copy  of  a  written  instrument  in  evidence  when  the  original  is  beyond 
the  jurisdiction  of  the  court  and  in  the  hands  of  a  third  party,  to  ob- 
tain the  original  before  the  copy  will  be  received  in  evidence.  In  the 
Dickison  case  a  copy  of  a  deed  was  offered  in  evidence,  which  the 
proof,  which  was  in  the  form  of  an  affidavit,  tended  to  show  was  in 
the  hands  of  the  plaintiff's  grantor  in  the  State  of  Indiana.  The  court 
held  that  the  plaintiff  should  have  taken  the  deposition  of  his  grantor 
and  not  have  relied  upon  a  copy  of  the  deed.  In  the  Fisher  case  the 
party  who  held  the  original  power  of  attorney  resided  in  the  State  of 
New  York,  and  upon  his  deposition  being  taken,  refused  upon  request 
to  attach  the  instrument  to  his  deposition,  and  it  was  held  that  upon 
such  refusal  a  sworn  copy  of  the  power  of  attorney  annexed  to  the 
deposition  of  another  witness  was  properly  received  in  evidence.  And 
in  the  Bishop  case,  on  page  307,  it  was  said :  "Secondary  evidence 
may  be  offered  to  prove  the  substance  of  a  document  which  it  is  out 
of  the  power  of  the  party  to  produce ;  and  this  rule  applies  to  papers 
out  of  the  jurisdiction  of  the  court,  provided  due  effort  be  made  to 
obtain  such  papers." 

We  think  the  rule  in  force  in  this  State  the  sounder  one  of  the  two 
rules  above  announced,  as  under  the  rule  in  force  in  Alabama  and  some 
other  States  it  is  only  necessary  to  introduce  proof  that  the  deed,  con- 
tract or  other  instrument  in  writing  relied  upon  is  in  the  hands  of  a 
third  party  outside  of  the  state  to  entitle  a  copy  thereof  to  be  admitted 
in  evidence.  In  the  Dickison  case,  on  page  187,  it  was  said :  "There  is 
much  danger  in  allowing  the  introduction  of  copies  without  fully  es- 
tablishing the  fact  of  the  existence,  at  some  time,  of  an  original  and  of 
its  subsequent  loss  or  destruction,  so  that  after  diligent  search  it  could 
not  be  found.  Justice  and  the  safety  of  the  people  require  a  rigid  rule 
to  be  applied  and  enforced  in  such  cases."  We  think  it  clear  the  trial 
court  followed  the  rule  established  in  this  State,  and  that  it  did  not 
err  in  refusing  to  admit  in  evidence  the  copy  of  said  agreement. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


The  Best  Evidence  RueE  655 

COOMBS  et  al.  v.  COOK. 
55  Okla.  326.     (1912) 

Hayes,  J.  Plaintiffs  in  error  brought  this  action  in  the  court  below 
to  quiet  title  to  an  undivided  half  interest  in  a  certain  tract  of  land 
consisting  of  225  acres,  situated  in  McCurtain  county  in  this  state,  and 
to  obtain  a  decree  of  partition. 

The  case  was  tried  to  the  court  without  a  jury.  Before  any  evi- 
dence was  heard,  the  following  stipulation  was  made  in  open  court: 

"For  the  purposes  of  this  trial,  it  is  stipulated  in  open  court  between 
attorneys  for  the  plaintiffs  and  the  attorneys  for  Betsy  Cook  that  the 
land  in  controversy  was  the  allotment  of  Isabel  O'Bannon,  who  was 
enrolled  as  a  full-blooded  Choctaw,  and  who  died  intestate  in  McCur- 
tain county.  It  is  further  stipulated  that  the  defendant  Betsy  Cook, 
formerly  Betsy  Durant,  is  enrolled  opposite  enrolment  No.  2083  as  a 
full-blood  Choctaw,  and  said  certificate  is  made  a  part  of  this  stipula- 
tion. It  is  further  stipulated  that  David  James,  Rachel  James,  and 
Margaret  Keel  have  conveyed  to  the  plaintiffs  their  interest  in  the  land 
described  in  this  petition,  which  interest  depends  on  the  ascertainment 
of  the  question  of  adoption  in  this  case.  It  is  further  stipulated  that 
the  only  issue  of  law  and  fact  between  the  defendant,  Betsy  Cook  and 
the  plaintiffs  is  the  fact  and  sufficiency  of  the  adoption  pleaded  as  a 
separate  answer  of  Betsy  Cook." 

The  trial  court  found  the  issues  generally  in  favor  of  Betsy  Cook 
and  against  the  plaintiffs,  and  found  specially  that  Isabel  O'Bannon 
was  a  Choctaw  Indian,  and  that  in  the  year  1892  she  adopted  Betsy 
Cook,  as  alleged  in  her  answer  in  accordance  with  the  laws  of  the  Choc- 
taw nation;  that  she  died  in  March,  1907,  after  having  taken  as  her 
allotment  the  land  in  controversy;  that  she  left  surviving  her  as  her 
kinsmen  only  the  persons  named  in  plaintiffs'  petition ;  and  that  Betsy 
Cook,  as  her  legally  adopted  child,  is  the  sole  and  only  heir  to  her  es- 
tate, and  rendered  judgment  in  her  favor  accordingly,  from  which 
judgment  only  plaintiffs  in  error,  plaintiffs  below,  prosecute  this  appeal. 

All  of  defendant's  evidence,  by  which  the  fact  of  her  adoption  was 
established,  was  parol  evidence,  made  after  proof  that  the  records  of 
the  court  in  which  the  order  of  adoption  was  made  had  been  destroyed. 
Plaintiffs  rely  for  reversal  of  the  cause  upon  four  contentions :  First, 
that  the  evidence  fails  to  establish  that  there  was  ever  a  record  in  any 
court  that  had  jurisdiction;  second,  that,  if  such  record  ever  existed, 
the  evidence  does  not  establish  that  it  is  lost  and  cannot  be  found; 


656  Cases  on  Evidencis 

third,  that  the  contents  of  such  record  has  not  been  shown;  fourth, 
that,  if  the  evidence  established  an  adoption  under  the  laws  of  the 
Choctaw  nation,  the  statutes  of  that  nation,  in  so  far  as  made  part  of 
the  evidence  at  this  trial,  fail  to  show  that  an  adoption  of  a  child  has 
the  effect  to  confer  upon  it  the  right  to  inherit  from  the  adopting  par- 
ent.    The  first  three  of  these  contentions  may  be  discussed  together. 

Defendant  in  error  pleaded  in  her  answer  and  proved  the  following 
tribal  statute  of  the  Choctaw  nation : 

"Any  person  or  persons  who  may  wish  to  adopt  illegitimate  or  or- 
phan child  or  children  shall  file  a  petition  to  that  effect  with  the  clerk 
of  the  county  they  may  reside  in,  which  shall  remain  on  file  for  30 
days;  and,  if  no  legal  or  just  cause  is  shown  why  the  petition  shall  not 
be  granted,  then  the  county  judge  shall  grant  the  petition  and  cause 
the  same  to  be  recorded  in  the  county  clerk's  office,  after  which  the 
adoption  shall  be  as  binding  as  if  done  by  a  special  act  of  the  general 
council." 

Where  under  the  provisions  of  the  statute,  an  adoption  is  effected 
by  an  order  of  the  court,  the  records  of  such  court  constitute  the  evi- 
dence by  which  such  adoption  may  be  established.  Quinn  v.  Quinn,  5 
S.  D.  328,  58  N.  W.  808,  49  Am.  St.  Rep.  875. 

In  the  absence  of  proof  of  such  order  of  adoption  by  the  court,  as 
provided  by  the  statute,  no  presumption  of  adoption  will  arise  from 
the  fact  that  a  child  has  lived  with  a  person,  who  is  not  his  parent, 
and  has  been  treated  as  a  child;  but,  where  the  records  of  the  court 
or  the  adoption  papers  have  been  destroyed  or  lost,  proof  of  the  con- 
tents of  such  records  or  papers  by  parol  testimony  then  may  be  made, 
and  circumstantial  evidence,  including  acts  and  declarations  of  the 
adopting  parent  relative  to  such  adoption  may  be  admitted.  Naworth 
V.  Hawaorth  et  al.,  123  Mo.  App.  303,  100  S.  W.  531 ;  Moore  v.  Bry- 
ant, 10  Tex.  Civ.  App.  131,  31  S.  W.  223;  Kennedy  v.  Borah,  226  111. 
243,  80  N.  E.  767. 

All  of  the  evidence  relative  to  defendant's  adoption  is  practically 
uncontroverted  by  plaintiffs. 

One  witness  by  the  name  of  Wilson,  who  was  district  judge  of  the 
Choctaw  Nation  for  Towson  county  at  the  time  of  the  admission  of 
the  state,  testifies  that  he  had  resided  in  Towson  county  during  his  en- 
tire life;  that  in  1892,  and  1893  his  father  was  county  judge  of  said 
county;  that  he  had  been  familiar  with  the  records  and  affairs  of  the 
County  Court  of  that  county ;  that  the  records  of  that  court,  made  from 
1890  to  1894,  were  burned;  that  the  county  clerk  kept  said  records  at 
his  home,  as  there  was  no  office  for  them  to  be  kept  in  at  the  time; 


The  Best  Evidence  Rui,e  657 

and  that  the  clerk's  residence  was  burned  and  the  records  of  the  court 
destroyed,  so  that  they  were  never  brought  back  to  court.  He  did  not 
remember  the  exact  date  of  the  fire,  but  that  it  occurred  along  about 
1894  or  1895.  During  this  time  Henry  Williams  was  clerk  of  the 
county.  Both  he  and  the  judge  of  the  County  Court  at  the  time  of  the 
adoption  proceeding  have  been  dead  for  a  number  of  years.  Another 
witness,  who  for  a  number  of  years  was  an  officer  of  Towson  county, 
either  in  the  capacity  of  sheriff,  deputy  sheriff,  or  special  ranger,  testi- 
fies also  that  the  records  of  the  County  Court  during  the  years  1892 
and  1893  were  burned  up ;  the  exact  date  of  the  fire  he  could  not  give, 
but  thought  it  was  about  the  year  1897,  which  date  he  fixed  by  the  fact 
that  on  the  ist  day  of  October,  1897,  he  qualified  as  sheriff  of  that 
county.  He  testifies  that,  after  the  burning  of  the  county  clerk's  resi- 
dence, the  records  were  never  seen  by  any  one.  The  same  witness  tes- 
tifies that  he  had  known  both  defendant  and  Isabel  O'Bannon  prac- 
tically eyer  since  the  birth  of  defendant.  During  the  greater  portion  of 
said  time,  he  has  lived  near  them.  He  was  in  court  in  the  early  part 
of  1892  when  Isabel  O'Bannon  handed  to  him  a  petition  for  the  adop- 
tion of  defendant  as  her  child,  which  witness,  upon  request  of  Isabel 
O'Bannon,  handed  to  the  court.  Witness  did  not  read  the  petition  then, 
but  did  so  after  it  had  been  spread  upon  the  records  of  the  court.  He 
was  present  when  the  court  announced  its  order  permitting  the  adop- 
tion, and  afterwards  read  the  order  of  adoption  upon  the  records  of 
the  court.  He  could  not  remember  all  the  content  of  the  record,  but 
does  remember  that  it  provided  that:  "The  adoption  of  such  child  to 
be  accepted  as  the  adopted  child  of  Mrs.  O'Bannon.  The  proceeding 
was  complete  of  the  adoption  of  this  child,  Betsy  Durant,  to  Mrs. 
O'Bannon."  The  same  witness  testifies  that,  during  her  entire  life 
thereafter,  Isabel  O'Bannon  treated  defendant  as  her  child,  and  stated 
that  she  had  adopted  her,  and  that  the  child  would  inherit  everything 
she  left  at  her  death.  Other  witnesses  testified  that  they  were  pres- 
ent in  court  when  a  petition  for  the  adoption  was  presented,  and  when 
an  order  was  made  thereon.  None  of  them  had  read  the  order  as  en- 
tered on  the  records  of  the  court  and  was  able  to  testify  as  to  the  con- 
tents of  the  record ;  but  all  the  evidence  tends  to  corroborate  the  testi- 
mony of  the  one  witness  who  testified  that  he  read  the  order,  and  that 
it  did  decree  an  adoption. 

We  think  the  foregoing  evidence  sufficient  to  establish  the  existence 
of  the  record  of  adoption  and  the  contents  thereof.  It  is  true  that 
defendant  does  not  show  that  she  has  made  any  search  for  such  rec- 
ord; but  the  evidence  of  the  foregoing  mentioned  witnesses,  to  the 


658  Cases  on  Evidence 

effect  that  the  records  were  burned,  is  corroborated  by  other  evidence. 
One  witness  who  had  married  about  the  time  this  adoption  occurred, 
testified  that  he  had  made  a  search  for  the  records  of  the  office  in  order 
to  obtain  a  copy  of  his  marriage  license,  and  had  been  unable  to  find 
the  records ;  that  they  had  been  burned.  It  is  true  that  secondary  evi- 
dence as  to  the  contents  of  records  or  written  instruments  is  not  ad- 
missible as  a  general  rule,  without  a  showing,  on  the  part  of  the  person 
offering  such  evidence,  that  he  has  made  a  diligent  effort  to  locate  the 
written  record  or  instrument,  and  has  been  unable  to  do  so  because 
of  the  fact  they  are  lost  or  destroyed,  but  the  law  does  not  require  a 
useless  thing;  and,  where  the  evidence  is  sufficient  that  the  record  or 
written  instrument  has  been  destroyed  by  fire,  there  can  be  no  reason 
or  good  purpose  subserved  by  requiring  the  person  offering  secondary 
evidence  thereof  to  make  search  for  such  destroyed  instrument  or  rec- 
ord. 

The  judgment  of  the  trial  court  is  accordingly  affirmed. 


OVERLOCK  V.  HALL. 
81  Me.  348.     (1889) 


Walton,  J.  The  exceptions  state  that  the  presiding  judge  against 
the  objection  of  the  plaintiff,  allowed  the  defendant  to  prove  the  con- 
tents of  a  letter  by  secondary  evidence,  when  no  notice  had  been  given, 
before  the  trial  began,  to  produce  the  letter.  But  the  exceptions  also 
state  that  the  letter  in  question  was  in  court,  and  in  the  hands  of  the 
plaintiff's  counsel,  and  that  while  the  trial  was  in  progress,  the  de- 
fendant's counsel  gave  him  notice  to  produce  it,  and  that  the  letter 
not  being  produced,  the  defendant  was  then  allowed  to  prove  its  con- 
tents by  secondary  evidence. 

We  think  the  ruling  was  correct.  We  understand  it  to  be  now  set- 
tled law,  both  in  England  and  in  this  country,  that  notice  before  the 
trial  begins  is  not  necessary  when  the  writing  is  in  court  and  in  the 
hands  of  the  adverse  party,  or  his  counsel.  The  old  authorities  seem 
to  doubt  the  propriety  of  such  a  relaxation  of  the  rule.  But  Mr.  Ste- 
phen, in  his  Digest  of  the  Law  of  Evidence  (art.  68)  says  that  such 
is  now  the  settled  law  in  England.  And  the  plaintiff's  counsel  admits 
that  the  law  is  so  laid  down  by  Mr.  Wharton  in  his  work  on  evidence. 


The  Best  Evidence  Rui,e  659 

And  we  quote  the  following  statement  of  the  law  from  Fisher's  Eng- 
lish Digest : 

"The  principle  on  which  notice  to  produce  a  document  is  required 
by  law,  is  merely  to  give  a  sufficient  opportunity  to  the  opposite  party 
to  have  the  document  in  court  to  produce  if  he  likes,  and  so  secure  the 
best  evidence  of  its  contents,  and  if  he  does  not,  to  enable  his  adver- 
sary to  give  secondary  evidence.  Therefore,  where  a  party  to  a  suit, 
or  his  attorney,  has  a  document  with  him  in  court,  he  may  be  called 
to  produce  it  without  previous  notice,  and  in  the  event  of  his  refusing, 
the  opposite  party  may  give  secondary  evidence."  Dwyer  v.  Collins, 
7  Exch.  639.  And  we  find  a  similar  statement  of  the  law  in  the  Amer- 
ican Digest,  citing  Anon,  Anth.  (N.  Y.)  199;  Brown  v.  Isbell,  11  Ala. 
1009;  Dana  v.  Boyd,  2  J.  J.  Marsh  (Ky.)  587. 

Our  rule  of  court  establishes  no  new  principle.  It  merely  affirms  a 
well  settled  rule  of  the  common  law.  So  held  in  State  v.  Mayberry,  48 
Me.  218.  And  it  must  be  accepted  and  enforced  with  such  limitations 
and  exceptions  as  experience  has  shown  to  be  reasonable  and  proper. 
Mr.  Stephen  in  his  admirable  condensation  of  the  law  of  evidence  (art. 
68)  states  these  exceptions  as  follows : 

Notice  is  not  required  in  order  to  render  secondary  evidence  admis- 
sible. 

1.  \Mien  the  document  to  be  proved  is  itself  a  notice. 

2.  When  the  action  is  founded  on  the  assumption  that  the  document 
is  in  the  possession  or  power  of  the  adverse  party  and  requires  its  pro- 
duction. 

3.  When  it  appears  or  is  proved  that  the  adverse  party  has  ob- 
tained possession  of  the  original  from  a  person  subpoenaed  to  pro- 
duce it. 

4.  When  the  adverse  party  or  his  agent  has  the  original  in  court. 

Bxceptions  overruled. 


JUDKINS  v.  WOODMAN. 
81  Me.  351.     (i88p) 


Walton,  J.  The  question  is  whether,  if  the  mortgagor  of  a  farm, 
while  remaining  in  possession,  cuts  a  reasonable  quantity  of  wood  for 
his  own  use  as  fuel,  he  can  on  leaving  the  farm,  remove  the.  wood  for 
use  elsewhere.    His  right  to  cut  the  wood  is  not  denied.    His  right  to 


66o  Cases  on  Evidence 

remove  it  for  use  elsewhere  is  denied.  Assuming  that  the  wood  was 
lawfully  cut,  being  reasonable  in  amount,  and  in  cutting  it  that  no  rule 
of  good  husbandry  was  violated,  we  think  that  upon  leaving  the  farm 
the  mortgagor  would  have  a  right  to  take  the  wood  with  him.  When 
severed  from  the  soil,  if  rightfully  and  lawfully  severed,  the  wood 
would  become  a  mere  chattel,  and  would  no  more  belong  to  the  mort- 
gagee than  hay  or  grain  or  fruit  harvested  from  the  farm.  This  rule 
does  not  apply  to  wood  or  timber  unlawfully  cut ;  it  applies  only  to 
wood  lawfully  cut  for  fuel  for  family  use.  Such  in  effect  was  the 
ruling  of  the  judge  who  tried  the  case,  and  we  think  the  ruling  was 
correct. 

'  Objection  was  made  to  the  admission  in  evidence  of  a  paper  said  to 
be  a  schedule  of  articles  claimed  by  the  mortgagees,  and  on  which  the 
wood  in  question  does  not  appear.  It  was  objected  to  on  the  ground 
of  irelevancy.  We  think  it  was  admissible  upon  the  same  ground  that 
any  declaration  of  a  party,  written  or  oral,  is  admissible.  Its  proba- 
tive force,  if  any,  was  for  the  jury. 

Exceptions  overruled. 


KNOWLTON  v.  KNOWLTON. 

84  Me.  283.     (1892) 

Peters,  C.  J.  In  this  action  the  plaintiff  declares  on  a  Judgment 
alleged  to  have  been  recovered  by  him  against  the  defendant,  in  1867, 
before  Robert  Goodenow,  Esquire,  a  trial  justice,  now  deceased.  To 
enable  him  to  introduce  secondary  evidence  of  the  contents  of  the 
alleged  record,  it  became  necessary  to  first  prove  that  the  original  had 
been  destroyed  or  lost.  Two  places  would  naturally  be  suggested  as 
necessary  to  be  searched  for  the  missing  record.  One  is  the  county 
clerk's  oflfice ;  because  the  statute  requires  that  all  official  papers  of  a 
trial  justice  shall  be  deposited  after  his  death  by  his  executor  or  ad- 
ministrator in  such  office.  But  the  record  could  not  be  found  there. 
The  next  inquiry  would  be  of  the  executor  or  administrator  of  the  de- 
ceased justice.  The  case  does  not  inform  us  whether  there  is  or  ever 
was  any  administrator  upon  his  estate.  But  the  plaintiff  was  allowed 
to  produce  as  evidence  the  following  affidavit:  "I,  Lucy  B.  Goode- 
now, of  Farmington,  Maine,  on  oath  depose  and  say:  That  I  am  a 
daughter-in-law  of  the  late  Robert  Goodenow  of   said  Farmington. 


The  Best  Evidence  Rule  66i 

That  I  have  in  my  custody  npne  of  the  papers  of  said  Robert  Goode- 
now. 

"That  I  have  heretofore  made  diligent  search  for  the  records  kept 
by  him  of  his  proceedings  as  trial  justice  and  have  been  unable  to  find 
the  same.  That  if  said  records  were  in  this  State  I  would  be  likely  to 
know  it.  That  I  have  no  personal  knowledge  of  their  whereabouts, 
but  they  are  undoubtedly  in  the  hands  of  some  one  out  of  the  State. 
Lucy  B.  Goodenow." 

This  affidavit,  instead  of  proving  the  records  lost,  proves  the  con- 
trary, and  that  "they  are  in  the  hands  of  some  one  out  of  the  State." 
There  is  in  this  document  a  very  positive  intimation  that  Mrs.  Goode- 
now knows  where  and  in  whose  hands  the  papers  are.  Now  the  plain- 
tiff is  not  excused  from  further  search  merely  because  the  papers  are 
shown  to  be  out  of  the  State.  Due  search  requires  that  he  produce 
them  or  show  a  reasonable  excuse  for  his  failure  to  do  so.  Until  that 
be  done  proof  of  their  contents  cannot  properly  be  received.  Whar. 
Ev.  sec.  130,  and  cases  in  note.  Here  the  deficiency  of  proof  is  not 
supplied,  nor  is  it  in  any  way  legally  excused. 

Judgment  for  defendant. 

Walton,  Virgin,  Emery,  Foster  and  Haskell,  JJ.,  concurred. 


HOISTING  MACHINERY  CO.  v.  GOELIER  IRON  WKS. 
84  N.  J.  L.  504.    (1913) 

TrEnchard,  J.  This  suit  was  brought  to  recover  a  commission  of 
five  per  cent  for  the  services  of  the  plaintiff,  a  mechanical  engineering 
company,  in  procuring  for  the  defendant,  who  was  engaged  in  the 
business  of  constructing  and  erecting  iron  work,  a  contract  with  the 
Harwood  Electrical  Company. 

Judgment  was  entered  for  the  plaintiff  for  the  sum  of  $462.98,  be- 
ing five  per  cent  of  $8,432.28,  with  interest,  and  the  defendant  ap- 
pealed. 

It  is  first  urged  as  a  reason  for  reversal  that  the  judge  erred  in  per- 
mitting Charles  Goeller,  the  president  of  the  defendant  company,  to 
answer  the  following  question  put  by  the  plaintiff's  attorney:  "Was 
John  Goelier  the  secretary  of  the  defendant  company  on  August  23rd, 
1909?"  The  only  objection  stated  was  that  such  evidence  was  not  the 
best  evidence.    We  think  there  was  no  merit  in  the  contention.    The 


662  Cases  on  Evidence 

incumbency  of  the  office  was  not  in  issue,  and  the  fact  sought  to  be 
proved  was  collateral  in  character.     Star  Grocer  Co.  v.  Bradford,  70 
W.  V.  496;  39  L.  R.  A.  (N.  S.)  184;  10  Cyc.  943. 
'The  judgment  will  be  affirmed. 


HIBERNIA  SAVINGS  AND  LOAN  SOC.  v.  BOYD. 
J35  Cal.  193.    (1909) 

AngelIvOTTi,  J.  This  is  an  action  on  an  alleged  judgment  for  de- 
ficiency after  foreclosure  sale  of  mortgaged  premises.  A  verdict  in 
favor  of  plaintiff  for  the  amount  of  such  alleged  judgment,  with  in- 
terest, was  rendered  by  the  jury  trying  the  case,  in  accord  with  an  in- 
struction of  the  trial  court  directing  them  to  so  do.  This  is  an  appeal 
by  defendant  from  the  judgment  entered  on  such  verdict,  and  from  an 
order  denying  his  motion  for  a  new  trial. 

Upon  the  facts,  as  established  by  the  admissions  of  the  answer  and 
the  uncontroverted  evidence  given  at  the  trial,  the  trial  court  was  fully 
warranted  in  instructing  the  jury  to  find  for  the  plaintiff. 

What  we  have  said  disposes  of  all  the  points  made  by  appellant,  ex- 
cept the  contention  that  the  trial  court  erred  in  admitting  oral  testi- 
mony to  prove  the  record  in  the  foreclosure  case,  including  the  de- 
ficiency judgment.  As  we  have  said,  all  records  appertaining  thereto 
had  been  destroyed  in  the  general  conflagration  of  April  19-20,  1906, 
and  proof  of  such  destruction  was  made  to  the  trial  court.  This  con- 
tention appears  to  be  based  on  the  act  of  June  16,  1906,  providing  for 
the  restoration  of  court  records  which  have  been  lost,  injured,  or  de- 
stroyed by  conflagration  or  other  public  calamity  (Stats.  1906,  p.  73), 
which  it  is  claimed  provides  an  exclusive  remedy  and  forbids  all  other 
proof  of  lost  judicial  records.  It  is  not  claimed  in  the  absence  of  such 
act  oral  proof  of  the  records  would  not  have  been  admissible.  A  judi- 
cial record  is  a  public  writing  (Code.  Civ.  Prbc,  sec.  1894),  and  section 
1855  of  the  Code  of  Civil  Procedure  provides  in  terms  that  when  an 
original  writing  has  been  lost  or  destroyed  and  proof  of  such  loss  or 
destruction  made,  it  may  be  shown  either  by  copy  or  oral  evidence  of 
its  contents.  In  Ames  v.  Hoy,  12  Cal.  11,  an  action  on  a  judgment, 
it  was  in  terms  held  that  parol  evidence  was  admissible  to  show  the 
existence  and  contents  of  a  judgment,  the  record  of  which  had  been 
destroyed  by  fire.    The  court  very  tersely  disposed  of  the  objection 


The  Best  Evidence;  Rule  663 

of  the  defendant  in  this  regard,  saying:  "It  is  also  argued  that  the 
destruction  of  the  book  containing  the  judgment  is  the  destruction  of 
the  judgment  itself;  so  that  the  primary  evidence  of  the  judgment  be- 
ing removed,  no  other  proof  of  it  is  admissible.  We  think  that  this 
position  is  alike  indefensible  in  reason  and  on  authority."  (See,  also, 
In  re  Warfield,  22  Cal.  51,  64,  [83  Am.  Dec.  49].)  Mr.  Freeman 
quotes  approvingly  the  rule  announced  by  Mr.  Greenleaf  in  his  work 
on  evidence,  as  follows :  "If  the  record  be  lost,  and  is  ancient,  its  ex- 
istence and  contents  may  sometimes  be  presumed;  but  whether  it  be 
ancient  or  recent,  after  proof  of  the  loss,  its  contents  may  be  proved, 
like  any  other  document,  by  any  secondary  evidence,  where  the  case 
does  not,  from  its  nature,  disclose  the  existence  of  other  and  better 
evidence,"  and  declares  this  rule  to  be  sustained,  beyond  a  doubt,  by 
the  weight  of  authority.  (2  Freeman  on  Judgments,  sec.  407  and 
note.)  After  a  careful  examination  of  its  contents,  we  are  satisfied 
that  the  act  of  June  16,  1906,  should  not  be  construed  as  purporting 
to  make  any  change  in  this  well-settled  rule  of  evidence. 
The  judgment  and  order  are  affirmed. 


DAVIS  v.  MONTGOMERY. 
205  Mo.  2ys-    (1907) 

Woodson,  J.  The  plaintiff  instituted  this  suit  in  the  Circuit  Court 
of  New  Madrid  County.  The  petition  states  that  plaintiff  was  the 
owner  of  certain  lands  described  in  the  petition,  and  that  defendants 
claimed  some  interest  therein  under  and  by  virtue  of  a  certain  tax 
deed,  which  plaintiff  alleged  was  void  for  want  of  proper  service  on 
the  defendants,  and  prayed  that  the  title  and  interest  of  all  parties 
in  and  to  said  land  be  ascertained  and  determined  by  the  court,  as  pro- 
vided by  section  650,  Revised  Statutes  1899. 

The  answer  was  a  general  denial  and  a  plea  of  the  thirty-year  Stat- 
ute of  Limitations. 

The  replication  was  a  general  denial  of  the  new  matter  set  up  in 
the  answer. 

There  are  but  two  questions  presented  by  the  record  in  this  court 
for  consideration.  The  first  is,  can  the  contents  of  a  lost  or  destroyed 
record  be  shown  by  parol  evidence?  and,  second,  were  the  allegations 
of  the  petition  and  the  order  of  publication  sufficient  to  give  the  Cir- 


664  Cases  on  Evidence 

cuit  Court  jurisdiction  over  the  subject  matter  in  the  case  of  Steel, 
Collector  v.  The  Unknown  Heirs  of  Robert  C.  Hayes? 

The  defendants  contend  that  the  action  of  the  court  in  permitting 
the  introduction  of  parol  evidence  to  show  the  contents  of  the  order 
of  publication  in  that  case  was  erroneous.  The  evidence  of  the  cir- 
cuit clerk  and  that  of  his  deputy  showed  that  they  made  diligent  search 
in  their  office  for  the  record  of  that  order  and  that  it  could  not  be 
found;  and  the  evidence  of  Mr.  Wright,  the  editor  of  the  Weekly 
Record,  showed  that  the  order  of  publication  was  delivered  to  him  for 
publication,  and  that  it  was  duly  published  in  his  paper,  and  that  it  was 
an  exact  copy  of  the  order  admitted  in  evidence,  and  that  the  certified 
copy  delivered  to  him  for  publication  had  been  destroyed  by  fire  in 
the  year  of  1899. 

The  record  clearly  shows  that  said  order  of  publication  had  been 
made  and  published,  and  had  either  been  lost  or  destroyed  prior  to  the 
date  of  the  trial  of  this  suit. 

The  rule  of  law  in  this  State  is  well  settled,  that  the  contents  of  a 
lost  or  destroyed  record  may  be  established  by  parol  evidence  in  the 
same  manner  as  the  contents  of  other  lost  or  destroyed  documents 
are  shown.  (Parry  v.  Walser,  57  Mo.  169;  Foulk  v.  Colburn,  48  Mo. 
225 ;  Land  &  Mining  Co.  v.  Land  &  Cattle  Co.,  187  Mo.  420.) 

The  recital  in  the  judgment  rendered  in  that  case  to  the  effect  that 
the  defendants  had  been  duly  notified  by  publication  of  the  institution 
and  the  nature  of  that  suit  did  not  prevent  plaintiflf  in  this  suit  from 
showing  by  parol  evidence  that  the  order  of  publication  did  not  com- 
ply with  the  provisions  of  section  580,  Revised  Statutes  1899,  because, 
as  stated  by  Valliant,  J.,  in  speaking  for  this  court,  in  a  well  and  very 
carefully  considered  case:  "Appellant  contends  that  the  recital  in  the 
tax  judgment  to  the  effect  that  the  summons  was  served  cannot  be 
overcome  by  the  evidence  of  those  witnesses.  If  the  files  in  the  case 
were  accessible,  the  return  itself  would  be  the  best  evidence,  and  by 
it  the  recital  in  the  judgment  would  be  contradicted,  but  when  the  files 
in  the  case  are  lost  their  contents  can  be  proven  by  the  next  best  evi- 
dence."   (Land  &  Mining  Co.  v.  Land  &  Cattle  Co.,  187  Mo.  i  c.  433.) 

In  the  case  at  bar,  the  record  of  the  order  of  publication  and  the 
certified  copy  which  was  delivered  to  the  publisher  were  both  lost  or 
destroyed.  Under  those  circumstances  it  was  proper  for  the  court  to 
admit  in  evidence  the  files  of  the  paper  containing  the  publication  of 
the  lost  or  destroyed  order.  The  editor  swore  the  files  contained  a 
true  and  correct  copy  of  the  order  delivered  to  him  by  the  clerk  for 
publication.    This  made  the  files  the  next  best  evidence  of  the  pubh- 


The  Best  Evidence  Rule  665 

cation  of  the  order.     (St,  Louis  Ins.  Co.  v.  Cohen,  9  Mo.  421 ;  Brown 
V.  Railroad,  69  Mo.  App.  584.) 

It  follows  from  what  has  been  said,  that  there  was  no  error  in  the 
action  of  the  trial  court  in  admitting  parol  evidence  to  prove  the  con- 
tents of  the  lost  or  destroyed  record  of  the  order  of  publication,  notify- 
ing the  defendants  of  the  institution  of  the  suit  of  Steel,  Collector,  v. 
the  Unknown  Heirs  of  Robert  C.  Hayes,  deceased. 

For  the  reasons  herein  stated,  the  judgment  of  the  Circuit  Court  is 
hereby  affirmed. 

All  concur. 


MORRISON  V.  WEIK. 
ip  Cal.  App.  i^g.     (1912) 


The  facts  are  stated  in  the  opinion  of  the  court. 

Shaw,  J.  Action  to  have  a  certain  deed,  which  purported  to  have 
been  made  by  plaintiff  to  defendant  Anna  Ilmer  Weik,  canceled  and 
annulled  upon  the  ground  that  the  signature  thereto  had  been  forged 
by  defendants.  The  court  upon  ample  evidence  found  that  the  instru- 
ment had  been  duly  signed  and  executed  by  plaintiff,  and  accordingly 
gave  judgment  for  defendants,  from  which,  and  an  order  denying  her 
motion  for  a  new  trial,  plaintiff  appeals. 

The  sole  alleged  error  upon  which  appellant  bases  her  claim  for  re- 
versal is  that  the  court,  over  plaintiff's  objection,  permitted  the  intro- 
duction of  evidence  on  behalf  of  defendants  tending  to  show  that  plain- 
tiff signed  and  executed  the  deed  which  defendants  were,  by  reason  of 
the  loss  thereof,  unable  to  produce  in  court.  Plaintiff  testified  that 
she  did  not  sign  the  deed,  and  now  on  appeal  contends  that  defendants 
should  not  have  been  permitted  to  prove  the  contrary,  since  they  did 
not  produce  the  deed,  nor  offer  sufficient  proof  of  its  loss.  The  ques- 
tion at  issue,  however,  was  not  the  contents  of  the  instrument,  which, 
it  was  conceded  by  the  complaint,  purported  to  be  a  conveyance  of  the 
property  described  therein,  but  whether  the  name  of  plaintiff  attached 
thereto  was  in  fact  her  genuine  signature.  While  the  production  of 
the  alleged  forged  signature  would  have  afforded  opportunity  for  its 
inspection  and  comparison  with  admitted  genuine  signatures  of  plain- 
tiff, thus  aiding  in  the  determination  of  the  question  at  issue,  the  want 
of  such  production  constituted  no  ground  for  the  exclusion  of  evidence 


666  Cases  on  Evidence 

touching  the  fact  in  controversy,  upon  the  ground  that  it  was  sec- 
ondary in  character,  and  hence  not  admissible  until  the  loss  of  the 
deed  was  shown.  Moreover,  conceding  that  the  testimony  offered,  and 
to  the  introduction  of  which  plaintiff  objected,  was  competent  only 
upon  proof  of  the  loss  of  the  instrument,  we  think  the  evidence  clearly 
and  sufficiently  established  such  fact.  The  evidence  shows  that  sub- 
sequent to  the  bringing  of  the  suit  accusing  defendants  of  the  forgery, 
one  of  them,  Fred  G.  Weik,  had  the  deed  in  his  possession,  and,  ac- 
companied by  his  attorney,  went  to  the  office  of  plaintiff's  attorney 
to  whom  he  exhibited  the  deed  and  tendered  it  to  him  for  inspection. 
Upon  the  latter  refusing  to  accept  it  or  look  at  it,  the  same  was  re- 
turned to  the  office  of  his  attorney.  Thereafter  defendant  obtained  it 
to  show  to  some  of  his  friends  and  again  returned  it  to  the  office  of  his 
attorney.  It  appears  that  both  said  defendant  and  his  attorney  made 
diligent  search  and  effort,  but  without  success,  to  find  the  deed.  The 
fact  that  the  deed  was  tendered  to  plaintiff's  attorney  for  inspection 
negatives  any  suspicion  that  might  otherwise  arise  from  withholding 
it.  Without  entering  upon  a  full  discussion  of  the  evidence,  suffice 
it  to  say  that  it  was  sufficient  to  satisfy  the  mind  of  the  court  that  the 
instrument  was  unintentionally  mislaid  or  lost,  and  that  after  a  diligent 
search  made  there  for  it  could  not  be  found.  Such  preliminary  proof 
is  left  to  the  discretion  of  the  trial  judge,  and  unless  manifestly  in- 
sufficient to  warrant  the  introduction  of  secondary  evidence,  his  rul- 
ing will  not  be  disturbed  on  appeal.  (Kenniff  v.  Cauleld,  140  Cal. 
35;  73  Pac.  803.)  • 

Judgment  and  order  appealed  from  are  affirmed. 

ALI.EN,  P.  J.,  and  James,  J,,  concurred. 


.MORRISON  v.  PRICE,  &c 
J30  Ky.  I3p.     (1908) 

Opinion  ot  the  Court  by  Judge  Hobson — Reversing. 

Mrs.  Joyce  Morrison  brought  this  suit  against  Henry  Price  and 
Oliver  Blair  to  recover  damages  for  their  forcibly  seizing  her  and  put- 
ting her  and  her  property  out  of  a  house  which  she  occupied  as  the 
tenant  of  Price.  The  defendants  filed  answer,  in  which  they  traversed 
the  allegations  of  the  petition. 

The  court  at  the  conclusion  of  the  evidence  instructed  the  jury  per- 


The  Best  Evidence  Rui^e  667 

emptorily  to  find  for  the  defendants,  which  was  done;  and,  the  plain- 
tiff's petition  having  been  dismissed  she  appeals. 

The  plaintiff  offered  in  evidence  a  deposition  taken  by  a  commis- 
sioner in  a  proceeding  to  supply  the  lost  record ;  the  papers  of  the  pro- 
ceeding in  which  judgment  was  rendered  in  her  favor  being  lost.  The 
court  properly  sustained  exceptions  to  this  deposition.  When  the  pa- 
pers of  a  case  are  lost,  and  a  proceeding  is  instituted  to  supply  the  lost 
record,  the  proof  taken  by  the  commissioner  may  not  be  read  as  a 
substituted  record.  In  Mayo  v.  Emery,  103  Ky.  640,  45  S.  W.  1048, 
20  Ky.  Law  Rep.  638,  the  court  said :  "The  statute  provides  that  the 
evidence  which  the  commissioner  takes  shall  be  in  writing,  and  shall 
be  legal  evidence,  and  shall  be  returned  to  the  clerk  of  the  court  and 
safely  kept  by  him.  The  statute  does  not  provide  that  the  evidence 
which  the  commissioner  is  required  to  take  shall  be  used  in  place  of 
the  parts  of  the  record  which  are  lost.  The  testimony  which  he  takes 
is  simply  the  evidence  upon  which  the  court  must  act  in  making  a  sub- 
stitution for  the  lost  record.  To  supply  the  lost  record,  it  is  essential 
that  the  court  should  make  an  order  to  that  effect,  and  he  sends  his 
commissioner  out  to  get  the  evidence  upon  which  to  act."  When  the 
record  has  been  thus  supplied  by  an  order  of  court,  the  judgment  of 
the  court  is  conclusive  that  all  preliminary  steps  were  properly  taken  ; 
but,  until  it  is  thus  supplied,  the  substituted  record  cannot  be  read. 

Where  the  record  is  lost,  and  has  not  been  supplied,  the  contents  of 
the  lost  record  may  be  shown  by  parol  evidence,  just  as  the  contents 
of  any  other  lost  paper  may  be  shown.  Bullock  v.  Commonwealth,  96 
Ky,  537,  29  S.  W.  341,  16  Ky.  Law  Rep.  621.  It  is  common  practice 
to  prove  by  parol  evidence  the  contents  of  a  lost  deed,  where  the  rec- 
ord has  been  destroyed ;  and  there  is  no  reason  why  the  contents  of  a 
judicial  record  may  not  be  proved  in  the  same  way  until  it  is  supplied. 
The  court,  therefore,  improperly  excluded  the  testimony  of  Mrs.  Mor- 
rison and  the  police  judge  as  to  the  record  being  lost  and  as  to  its  con- 
tents. 

Judgment  reversed  and  the  cause  remanded  for  a  new  trial. 


668  Cases  on  Evidence 

ATLANTIC  COAST  LINE  RAILROAD  CO.  v.  HILL. 
12  Ga.  App.  5p^,     (1912) 

Russell,  J.  Hill  brought  an  action  in  the  City  Court  of  Nashville 
against  the  Atlantic  Coast  Line  Railroad  Company  to  recover  for  dam- 
age to  a  lot  of  household  goods  and  furniture  which  he  alleged  he,  as 
consignee,  had  received  from  this  carrier  at  destination  in  a  damaged 
condition.  The  jury  returned  a  verdict  in  favor  of  the  plaintiff,  and 
the  defendant  excepts  to  the  overruling  of  its  demurrers,  the  refusal 
to  strike  a  notice  to  produce  certain  papers  which  had  been  served  upon 
the  defendant,  and  the  overruling  of  its  motion  for  a  new  trial. 

The  motion  for  a  new  trial  assigns  error  upon  the  court's  permitting 
the  plaintiff,  while  testifying,  to  read  from  a  book  kept  by  himself  and 
testify  therefrom;  because  the  defendant  had  produced  a  copy  of  the 
bill  of  lading  showing  what  goods  were  shipped,  delivered,  and  received 
by  the  defendant,  and  because  oral  testimony  was  not  admissible  when 
a  correct  copy  of  the  documentary  testimony  was  obtainable,  and  es- 
pecially when  it  had  not  been  shown  that  the  original  papers  called  for 
in  the  notice  were  in  the  possession  of  the  defendant.  As  to  these  ob- 
jections it  is  only  necessary  to  say  that  the  plaintiff  testified  that  he 
had  delivered  the  original  bill  of  lading,  along  with  the  notice  to  trace, 
to  an  agent  of  the  defendant  and  the  defendant  failed  to  produce  it  on 
notice  to  produce.  The  plaintiff  was  therefore  permitted  to  prove  by 
secondary  evidence  (such  as  his  oral  testimony  would  be)  what  was 
actually  delivered  to  the  carrier.  Crawford  v,  Hodge,  81  Ga.  728  (8 
S.  E.  208).  If  the  original  bill  of  lading  had  been  produced,  it  would 
have  been  prima  facie  evidence  to  the  same  point,  but  its  statement  of 
the  articles  received  would  not  be  conclusive  upon  the  shipper.  As  to 
the  shipper  the  bill  of  lading  is  in  the  nature  of  a  receipt  given  by  the 
opposite  party,  and  he  may  show,  if  he  can,  that  it  does  not  evidence 
the  acceptance  of  all  of  the  articles  he  deHvered  to  the  carrier.  It  is 
not  error  to  allow  the  plaintiff  to  refer  to  his  book,  as  it  does  not  ap- 
pear that  he  testified  from  his  book,  and  not  from  his  memory.  A 
witness  may  use  any  memorandum,  useful  for  that  purpose,  to  refresh 
his  recollection,  and  his  testimony  will  not  be  objectionable,  if  it  is,  at 
last,  not  entirely  dependent  upon  the  memorandum,  but  based  upon 
his  memory,  even  though  the  memorandum  may  be  necessary  in  order 
to  refresh  his  recollection. 

There  was  no  error  in  permitting  the  oral  testimony  complained  of 
in  the  4th  ground  of  the  amendment  to  the  motion  for  new  trial,  over 


The  Best  Evidence  Rule  669 

the  defendant's  objection  that  "the  way-bill  or  dray  ticket"  was  higher 
and  better  evidence.  The  defendant  had  failed  to  produce  this  way- 
bill or  dray  ticket,  if  he  had  it  in  his  possession,  or  to  show  that  it  was 
lost  or  destroyed,  and  the  court's  ruling  was  therefore  in  accord  with 
what  has  just  been  held.     Crawford  v.  Hodge,  supra. 

Judgment  affirmed. 


BRENTNER  v.  THE  C.  M.  &  ST.  P.  R.  CO. 
< 

55  Iowa  62^.     (1882) 

Action  to  recover  double  damages  for  certain  cattle  alleged  to  have 
been  killed  by  one  of  the  defendant's  trains  where  it  had  a  right  to 
fence.  There  was  a  trial  to  a  jury,  and  a  verdict  and  judgment  were 
rendered  for  the  plaintiff.    The  defendant  appeals. 

Adams,  J.  A  question  was  raised  as  to  the  proof  of  service  of  the 
notice  and  affidavit  of  loss  required  by  statute  to  entitle  the  plaintiff  to 
double  damages.  The  service,  if  made,  was  made  by  one  Summer, 
who  made  an  affidavit  to  the  effect  that  he  served  a  notice  and  affidavit 
of  loss  upon  the  defendant'  station  agent  by  reading  them  to  him  and 
leaving  the  same  with  him ;  duplicate  originals  of  which  were  annexed 
to  his  affidavit.  The  papers  introduced  in  evidence  were  the  so  called 
duplicate  originals  to  which  the  affidavit  of  service  was  annexed.  The 
defendant  objected  upon  the  ground  that  the  papers  were  inadmissible 
without  first  having  called  upon  the  defendant  to  produce  the  notice 
and  affidavit  read  to,  and  left  with  the  defendant's  station  agent.  The 
defendant  relies  upon  McNaught  v.  C.  &  N.  W.  R'y  Co.,  30  Iowa  336  ; 
Cole  V.  C.  &  N.  W.  R'y  Co.,  38  id.  311;  Campbell  v.  C.  R.  I.  &  P. 
R.  R.  Co.,  35  id.  334. 

The  doctrine  of  those  cases  is  that  the  service  cannot  be  made  by 
leaving  a  copy  of  the  affidavit  of  loss,  but  must  be  made  by  leaving  the 
original.  What  was  served  in  this  case  was  without  question  the  orig- 
inal, if  what  the  plaintiff  claims  was  served  was  in  fact  served.  The 
question  presented  is,  as  to  whether  the  original  papers  left  with  the 
defendant's  agent  are  to  be  deemed  the  best  evidence  and  all  other  evi- 
dence secondary.  If  so  the  plaintiff  was  not  entitled  to  introduce  the 
evidence  which  he  did,  without  first  showing  that  he  had  notified  the 
defendant  to  produce  the  papers  left  with  its  agent. 

The  doctrine  is  familiar  that  where  a  person  seeks  to  give  evidence 


670  Cases  on  Evidence  ^ 

of  the  contents  of  an  instrument  he  must  produce  the  original  or  ac- 
count in  some  way  for  its  non-production.  But  the  papers  in  question 
were  not,  we  think,  instruments  in  such  sense  as  would  justify  us 
in  applying  the  rule  above  mentioned.  It  has  been  repeatedly  held  that 
proof  of  the  service  of  a  notice  can  be  made  without  notice  to  the 
other  party  to  produce  the  notice  served.  Atwell  v.  Grant,  11  Md. 
loi ;  Central  Bank  v.  Allen,  16  Me.  41 ;  Eagle  Bank  v.  Chapin,  3  Pick. 
180;  Falkner  v.  Beers,  2  Doug.  (Mich.)  117;  Leavitt  v.  Lines,  3  N. 
H,  14;  Morrow  v.  Commonwealth,  48  Penn.  St.  305.  See  also  i 
Greenleaf  on  Ev.,  sec.  561.  Now  while  one  of  the  papers  in  this  case 
was  an  affidavit,  it  falls,  we  think  under  the  same  principle.  It  was 
a  mere  ampHfication  of  the  notice  by  a  sworn  statement  of  the  truth 
of  the  matters  of  which  the  defendant  was  notified.  The  papers  in- 
troduced were  said  to  be  duplicate  originals.  If  so  they  must  have 
been  equivalent  to  an  exact  copy  which  is  the  essential  idea;  and  as 
such  they  were  admissible  as  a  means  of  describing  the  papers  served 

Reversed  on  other  grounds. 


TRAINOR  V.  LEE,  CITY  TREASURER. 
34  R-  ^-  345'    (^9^2) 

Parkhurst,  J.  This  is  an  action  on  the  case  to  recover  the  sum  of 
four  hundred  and  forty-three  dollars  and  twenty-one  cents  ($443.21), 
for  services  rendered  by  the  plaintiff  as  Chief  of  Police,  Town  Ser- 
geant, and  Dog  Officer  of  the  town  of  Cranston  in  the  city  of  Cranston. 

The  next  exception  relates  to  the  testimony  offered  by  the  defend- 
ant's counsel,  that  there  was  no  appropriation  made  by  any  proper 
authority,  from  which  payment  of  the  plaintiff's  claim  could  properly 
be  made.  Defendant's  counsel  offered  himself  as  a  witness  as  to  the 
facts,  without  attempting  to  produce,  or  to  account  for  the  lack  of, 
record  evidence  on  this  point,  where  it  was  quite  evident  that  such  rec- 
ord evidence  could  and  should  have  been  produced,  if  it  existed.  It 
is  quite  manifest  that  it  would  have  been  error  to  allow  him  to  offer 
his  oral  evidence  of  such  matters.  3  Elliot  Ev.  1942;  Owings  v.  Speed, 
5  Wheat.  420;  Hutchinson  v.  Pratt,  11  Vt.  402;  Gilbert  v.  New  Ha- 
ven, 40  Conn.  102;  Morrison  v.  Lawrance,  98  Mass.  219,  221.  This 
exception,  is  overruled. 

We  find  no  error;  the  exceptions  alleged  by  the  defendants  are  all 


The  Best  Evidence  Rule  671 

overruled,  and  the  case  is  remitted  to  the  Superior  Court  with  direc- 
tion to  enter  judgment  upon  the  verdict  for  the  plaintiff. 


COMMONWEALTH  v.  MORRELL. 
pp  Mass.  542.     (1868) 

Indictment  for  robbery.  At  the  trial  in  the  Superior  Court  before 
Devens,  J.,  the  defendants  were  found  guilty,  and  alleged  exceptions 
which  were  allowed  as  follows : 

"The  evidence  for  the  commonwealth  tended  to  show  that  Thomas 
Wait  of  Greenfield  vv^as  robbed  on  the  night  of  February  19,  1867,  at 
Greenfield.  There  was  furtheir  evidence  tending  to  show  that  Anthony 
Baker,  one  of  the  defendants,  the  day  after  the  robbery  shipped  by 
express  from  South  Deerfield  two  valises  for  Chicago,  IlHnois.  The 
express  agent  at  South  Deerfield  testified  that  he  affixed  tags  to  the 
valises,  which  he  marked  by  direction  of  Baker,  'B.  Anthony,  Chicago, 
111.,'  which  name  Baker  gave  as  his  own.  Afterwards  James  P.  Wade, 
a  detective  officer,  testified  that  he  and  one  Jones,  his  partner,  arrested 
the  defendants  at  Chicago,  took  possession  of  their  baggage,  and  de- 
tached the  tags  from  their  valises  for  the  purpose  of  preserving  them 
as  evidence.  The  witness  was  proceeding  to  state  what  was  written  on 
the  tags  so  detached  by  them  when  the  defendants'  counsel  objected, 
claiming  that  the  tags  must  be  produced  or  shown  to  be  lost  before  the 
writing  thereon  could  be  given  by  the  witness.  The  witness  then  testi- 
fied that  he  had  kept  the  tags,  taken  them  to  Boston,  and  given  them 
to  Jones,  and  that  they  had  been  placed  by  Jones  in  a  drawer  in  the 
office  jointly  occupied  by  Jones  and  the  witness,  to  which  drawer  they 
both  had  access  and  keys,  and  of  which  both  had  equal  control ; 
that  they  could  not  find  them,  and  he  believed  them  to  be  lost. 
Jones  was  not  called  as  a  witness.  On  this  testimony,  and  against  the 
defendants'  objection,  the  presiding  judge  ruled  that  the  witness  might 
state  what  was  written  on  the  tags ;  and  the  witness  stated  that  on  the 
tags  was  written  'B.  Anthony,  Chicago,  111.' " 

Chapman,  C.  J.  The  law  generally  requires  the  production  of  the 
highest  evidence  of  which  a  thing  is  capable ;  and  evidence  is  to  be  ex- 
cluded which  supposes  still  higher  evidence  behind  in  the  possession 
or  power  of  the  party.  But  the  rule  is  far  from  being  universal.  For 
example,  it  does  not  require  that  a  supposed  writer  shall  be  called  to 


672  Cases  on  Evidence 

prove  his  own  handwriting,  or  that  a  person  whose  identity  is  to  be 
proved  shall  be  produced  in  court.  The  same  is  true  in  respect  to  an 
animal  or  any  other  object  the  identity  of  which  is  to  be  proved. 

The  general  rule  is  most  frequently  applied  to  writings,  where  proof 
is  offered  of  their  contents.  The  writing  itself  must  be  produced.  But 
there  are  many  exceptions  as  to  writings.  An  inscription  on  a  banner 
or  flag  carried  about  by  the  leaders  of  a  riot  may  be  proved  orally. 
The  King  v.  Hunt,  3  B.  &  Aid.  566.  Or  a  direction  contained  on  a 
parcel.  Burrell  v.  North,  2  Car.  &  Kirw.  679.  Or  a  notice  to  an  in- 
dorser  of  a  promissory  note.    Eagle  Bank  v.  Chapin,  3  Pick.  180. 

In  the  present  case,  the  tag  referred  to  was  not  a  document,  but  an 
object  to  be  identified.  The  words  written  upon  it  served  to  identify 
it  and  the  court  are  of  opinion  that  oral  evidence  was  admissible  for 
this  purpose,  and  that  it  was  not  necessary  to  produce  the  tag.  An  in- 
spection of  the  tag  with  the  written  direction  upon  it  might  have  been 
more  satisfactory  to  the  jury  than  oral  description  of  it,  and  therefore 
might  be  regarded  as  the  stronger  evidence;  but  the  strength  of  evi- 
dence and  the  admissibility  of  evidence  are  different  matters. 

But  even  if  it  ought  to  have  been  produced  in  the  absence  of  evi- 
dence of  its  loss,  the  proof  of  loss  was  adduced  to  the  judge,  and  his 
decision  as  to  the  credibility  of  the  evidence  of  loss  was  conclusive, 
and  not  subject  to  exception.    Foster  v.  Mackay,  7  Met.  531. 

Bxceptions  overruled. 


The  Parol  Evidence  Rulb  673 

the  pae-ol  evidence  rulb.i 

AUGUSTUS  ALLEN  &  another  v.  RICHARD  FURBISH. 
70  Mass.  504.     (185s) 

Action  of  contract  on  a  promissory  note  for  $30,  dated  August  13th, 
1853,  signed  by  the  defendant,  payable  to  the  plaintiflFs  or  order  in 
three  months  from  date,  with  interest. 

At  the  trial  in  the  Court  of  Common  Pleas,  the  defendant  was  al- 
lowed against  the  plaintiffs'  objection,  to  introduce  parol  evidence  "that 
on  the  13th  of  August,  1853,  the  defendant  purchased  a  horse  of  the 
plaintiff  for  $60,  and  paid  for  $30  in  cash,  and  gave  this  note  for  the 
balance ;  that  it  was  agreed  at  the  time  of  purchase,  as  an  inducement 
to  the  bargain,  that  if  the  defendant  should  be  dissatisfied  with  the 
horse  within  three  months,  he  might  return  him  to  the  plaintiff,  re- 
scind the  contract,  and  receive  the  note  and  money ;  that  the  horse  was 
bought  upon  that  condition ;  and  that  within  a  week  after  the  purchase 
the  defendant  was  dissatisfied,  took  the  horse  back  and  offered  him  to 
the  plaintiffs  and  demanded  the  money  and  note,  but  the  plaintiffs  re- 
fused to  receive  him." 

Hoar,  J.,  ruled  "that  if  the  jury  were  satisfied  that  the  note  was 
given  as  a  part  of  the  price  of  a  horse  sold  to  the  defendant  by  the 
plaintiffs ;  and  that  the  horse  was  sold  to  the  defendant  upon  the  con- 
^dltion  that  if  he  should  be  dissatisfied  with  the  horse  within  three 
months  and  should  return  him,  the  bargain  should  be  rescinded  and  the 
money  and  note  returned ;  and  that  the  defendant  within  three  months 
was  dissatisfied,  and  did  return  the  horse,  and  demand  the  money  and 
note;  then  the  consideration  of  the  note  had  failed,  and  the  plaintiffs 
could  not  recover,  although  they  refused  to  receive  the  horse.  But  that, 
if  not  satisfied  of  these  facts,  they  should  find  for  the  plaintiffs." 

The  jury  returned  a  verdict  for  the  defendant,  and  to  these  instruc- 
tions, and  to  the  admission  of  the  parol  evidence,  the  plaintiffs  ex- 
cepted. 

Dewey,  J.  The  principle,  that  parol  evidence  is  inadmissible  to  an- 
nex a  condition  to  an  absolute  promise  in  writing  in  the  form  of  a 
promissory  note  promising  to  pay  a  certain  sum  of  money  on  a  certain 
day  named,  seems  to  be  too  well  settled  in  this  commonwealth  to  be 
further  questioned. 

In  the  present  case  the  parol  evidence  is  not  offered  to  show  any  il- 
legality in  the  contract,  or  any  fraudulent  representation  or  breach  of 

iHughes  on  Evidence,  p.  235. 


674  Cases  on  Evidence; 

warranty  as  to  the  nature  of  the  property  sold,  but  simply  to  show  that 
the  note  was  given  upon  a  condition  rendering  it  defeasible.  It  has  no 
tendency  to  show  a  want  of  consideration,  or  a  failure  of  considera- 
tion, as  we  understand  the  law  on  this  subject.  There  was  a  good  and 
valid  consideration  for  the  note  in  any  view  of  the  case.  The  trans- 
fer of  the  possession  of  the  plaintiff's  property  to  the  defendant,  to  be 
held  and  enjoyed  as  his  own,  and  with  the  full  right  to  sell  and  dis- 
pose of  it  for  his  own  benefit,  was  in  itself  a  sufficient  consideration 
for  his  note.  This  consideration  has  never  failed,  but  has  continued 
to  be  enjoyed  by  the  defendant.  The  gravamen  complained  of  by  the 
defendant  does  not  reach  the  consideration,  or  show  any  failure  there- 
in. The  parol  evidence  would,  if  competent,  prove  that  the  plaintiff 
had  not  performed  a  stipulation  on  his  part  to  deliver  up  the  note  on 
the  happening  of  a  certain  event. 

Had  the  plaintiff  received  back  the  horse,  and  treated  the  contract 
of  sale  as  rescinded,  the  defendant  might  properly  have  insisted  upon 
such  fact  in  defense  of  the  right  of  the  plaintiff  to  recover  on  the  note. 
That  would  have  presented  a  different  case,  and  might  have  been  com- 
petent to  show  the  defendant  was  thereby  discharged  from  further  lia- 
bility on  the  note,  for  the  reason  that  plaintiff  had  assented  to  the  re- 
scinding of  the  contract,  and  taken  back  the  property. 

In  the  view  we  have  taken  of  this  case,  a  majority  of  the  court  are 
of  opinion  that  the  parol  evidence  was  inadmissible  for  the  purpose  of 
sustaining  the  defense.  It  was  not  admissible  as  evidence  showing  a 
want  or  failure  of  the  consideration  of  the  note,  its  effect  being  solely 
to  engraft  a  condition  upon  an  absolute  written  promise,  and  by  force 
and  effect  of  this  condition  to  defeat  the  recovery  of  the  note. 

Exceptions  sustained. 


RANDALL  B.  SWEET  v.  GRANVILLE  S.  STEVENS. 
7  R.  I.  275.    (1862) 

Assumpsit  upon  a  check  drawn  by  the  defendant  on  the  25th  day  of 
June,  1862,  upon  the  High  Street  Bank,  in  Providence,  requesting  said 
bank  to  pay  to  the  plaintiff,  or  order,  on  the  12th  day  of  July,  1862,  the 
sum  of  forty-five  dollars,  which  check  the  bank  refused  to  pay,  of 
which  the  defendant,  on  the  same  day,  had  notice,  &c. 

Bui,U)CK^  J.    The  only  question  in  this  case  is,  whether  the  parol 


Ths  Paroi.  Evidence  RulB  675 

testimony,  offered  by  the  defendant  in  bar  of  the  plaintiff's  action,  is 
admissible  under  the  rules  of  evidence. 

No  oral  declarations  or  agreements,  made  between  the  parties  to  a 
written  contract,  are  admissible,  to  contradict  or  vary  the  terms  of  such 
contract.  The  law  presum.es  the  written  engagement  to  be  the  contract 
of  the  parties,  and  to  embrace  all  the  terms  and  stipulations  deemed 
material  by  either  at  the  time  of  its  execution.  And  hence  the  whole 
current  of  autliorities  is,  that  in  an  action  upon  a  note,  check,  or  bill 
of  exchange,  for  the  payment  of  money  absolutely,  and  which  has  been 
fully  executed  and  delivered  by  the  original  parties  thereto,  it  is  not 
competent  to  show  by  parol,  that  such  note,  check,  or  bill  of  exchange 
was  not  to  be  paid  except  upon  a  contingency  which  has  not  happened, 
or  upon  a  condition  which  has  not  been  performed. 

The  mode  of  preserving  the  condition  or  defeasance  is,  to  incor- 
porate it  into  the  written  contract,  or  to  cause  the  writing  to  be  exe- 
cuted and  delivered  in  escrow.  Free  v.  Hawkins  and  Foster  v.  Jolly, 
before  cited.  If,  therefore,  the  check  sued  upon  has  taken  effect  by 
an  actual,  absolute,  and  legal  delivery  to  the  plaintiff,  so  that  the  de- 
fendant had  no  right  to  recall -it,  and  being  in  terms  payable  without 
condition,  oral  testimony  is  offered  to  show  that  it  was  to  be  paid  upon 
conditions,  such  evidence  varies  the  terms  of  the  written  instrument, 
and  is  clearly  inadmissible. 

It  is,  however,  competent  to  show  by  parol  the  circumstances  under 
which  the  written  contract  was  made,  as  that  it  was  in  pursuance  of 
some  general  purpose,  and  what  that  purpose  was.  3  Starkie  on  Evd. 
1047,  1048.  And  so  in  Hubbard  v.  Barker,  executrix,  i  Allen,  99, 
which  was  a  suit  by  a  grandchild  against  her  grandmother's  executrix, 
to  recover  a  note  given  to  the  child  by  the  testatrix,  the  plaintiff  was 
permitted  to  show,  by  parol,  the  manner  or  plan  by  which  the  testatrix 
distributed  her  estate,  and  that  the  note  was  given  in  pursuance  of,  and 
as  a  part  of,  such  plan. 

The  question  here  is  not  a  question  touching  the  consideration  of  a 
check,  a  want  or  failure  of  which,  between  the  original  parties,  may  be 
shown;  neither  is  it,  upon  the  facts  stated,  a  question,  whether  parol 
evidence  may  be  offered  to  vary  or  change  an  absolute  written  prom- 
ise into  a  conditional  one ;  but,  rather,  whether  it  is  competent  to  show, 
by  parol,  that  such  written  promise  grew  out  of  an  oral  agreement  or 
negotiation,  which  agreement  was  inchoate  and  unexecuted  in  fact  by 
either  party,  and  by  the  express  terms  of  which  the  written  instrument 
was  not  to  be  regarded  as  obligatory,  but  its  operation  and  efficacv  sus- 
pended until  the  happening  of  an  event  then  in  the  future.    In  such  case, 


676  Cases  on  Evidence 

the  rule  which  presumes  the  written  instrument  to  embody  the  entire 
contract  and  all  its  stipulations,  does  not  apply.  The  oral  evidence  is 
offered,  not  to  contradict  or  vary  the  written,  but  admitting,  seeks  to 
avoid  it  by  showing  tliat,  as  an  entire  and  independent  agreement,  it 
has  no  present  legal  effect. 

The  evidence,  objected  to,  was  offered  to  show  that  the  plaintiff 
and  defendant  contemplated  a  trade,  by  the  terms  of  which  the  defend- 
ant was  to  give  $45  for  the  Mathewson  note  and  his  own  debt  of  $13, 
if  he  could  use  the  Malhewson  note  in  set-off.  If  he  could  not  use 
the  note,  he  did  not  propose  to  buy  it.  He  received  the  note  into  his 
possession  for  the  purpose  of  ascertaining  this  fact.  It  was  endorsed 
by  the  plaintiff  to  enable  the  defendant  to  use  it,  if  Mathewson  would 
receive  it.  If  ^lathewson  would  not  receive  it,  the  defendant  was  to 
return  it.  The  defendant  acquired  no  present  title  under  the  endorse- 
ment, becau'^e  there  was  no  complete  and  absolute  delivery  of  the  note 
made,  or  intended  to  be  made.  Upon  thus  receiving  the  note,  the  de- 
fendant gives  his  check  to  the  plaintiff  with  the  express  understanding, 
that  the  plaintiff  was  to  return  it  if  the  defendant  could  not  use  the 
note.  Hence  the  check  was  post-dated.  It  was  in  the  nature  of  a 
memorandum-check.  It  vested  no  present  authority  in  the  plaintiff 
to  demand  or  receive  the  money;  neither  was  it  intended  to.  And 
this  view  of  the  transaction  is  confirmed  by  the  fact  that  the  plain- 
tiff did  not  receipt  his  bill  against  the  defendant,  thus  showing  that  he 
did  not  regard  the  trade  as  completed. 

We  think  the  evidence  does  not  fall  within  the  rule  of  parol  testi- 
mony offered  to  vary  or  contradict  a  valid  written  agreement,  and, 
upon  the  facts  stated  in  the  bill  of  exceptions,  was  admissible. 

As  the  defendant  has  impounded,  in  court,  the  Mathewson  note  for 
the  plaintiff's  use,  the  plaintiff's  exceptions  are  overruled,  and  judg- 
bent  will  be  entered  in  the  Court  of  Common  Pleas  upon  the  verdict. 


1  Hughes  on  Evidence,  p.  236. 


The  Parol  Evidence  Rui,e  677 

JOHNSON  V.  ELMEN. 
P4  Tex.  168.     (1900) 

Gaines,  C.  J.  This  case  comes  to  us  upon  a  certificate  of  dissent 
from  the  Court  of  Civil  Appeals  for  the  First  District. 

The  trial  court  admitted  evidence  of  the  parol  agreement  to  pay  the 
vendor's  lien  upon  the  land  conveyed  by  Elmen  to  Johnson,  and  upon 
appeal  the  Court  of  Civil  Appeals  upheld  that  ruling,  one  of  the  judges 
dissenting.  This  presents  the  question  which  has  been  certified  for 
our  determination. 

The  cases  in  which  the  question  of  the  admissibility  of  parol  evi- 
dence to  aflect  a  covenant  against  incumbrances  in  a  deed  conveying 
land  may  be  divided  into  three  classes. 

In  many  cases  it  has  been  sought  to  show  that  one  or  more  incum- 
brances were  known  to  the  covenantee  and  to  exclude  such  from  the 
operation  of  the  covenant.  But  it  is  held,  certainly  by  the  great  weight 
of  authority,  that  this  can  not  be  done.  A  sufficient  reason  for  the 
rule  is  that  the  covenantee  in  many  instances  may  insist  upon  the  cove- 
nant for  the  very  purpose  of  guarding  against  incumbrances  which  he 
knew  to  exist.  In  other  cases,  it  has  been  held  that  parol  evidence  can 
not  be  admitted  to  show  merely  that  the  parties  orally  agreed  that  a 
certain  incumbrance  should  be  excepted  from  the  operation  of  the  cove- 
nant. To  admit  such  evidence  is  to  violate  the  familiar  rule  that  parol 
evidence  is  not  admissible  to  vary  the  terms  of  a  written  contract.  So 
far,  the  courts  are  in  practical  accord.  But  whether  or  not,  notwith- 
standing a  covenant  against  incumbrances  in  a  deed,  it  may  be  shown 
by  parol  evidence  that  it  was  agreed  between  the  parties  at  the  time  of 
the  conveyance  and  as  a  part  of  the  contract,  that  the  covenantee 
should  himself  discharge  an  incumbrance,  is  a  question  of  more  diffi' 
culty  and  one  upon  which  there  is  a  conflict  of  authority.  We  think 
however,  the  rule  that  in  such  cases  parol  evidence  is  admissible  is 
supported  by  the  better  reason  and  the  weight  of  authority. 

A  deed  may  contain  all  the  terms  of  the  contract  of  sale  between 
the  parties  to  it.  This  occurs  where  the  purchase  money  is  fully  paid 
at  the  time  of  the  execution  of  the  instrument  and  ifs  payment  is  ac- 
knowledged in  the  deed.  Again,  the  recitals  may  be  so  explicit  as  not 
only  to  show  all  the  stipulations  on  part  of  the  grantee  but  also  to  ex- 
clude the  existence  of  any  other.  In  other  words,  the  conveyance,  with 
its  recitals,  may  be  such  as  to  make  it  apparent  upon  its  face  that  it 
contains  all  the  terms  of  the  contract  between  the  parties.    But  for  the 


678  CASies  ON  Evidence 

reason  that  the  conveyance  must  be  in  writing  in  order  to  pass  the  ti- 
tle, it  sometimes  occurs  that  the  deed  is  but  a  part  of  the  contract,  and 
that  there  are  other  stipulations  on  the  part  of  one  or  both  of  the  par- 
ties which  do  not  appear  upon  its  face.  When  such  other  terms  of  the 
contract  are  not  required  by  law  to  be  in  writing,  they  may  be  proved 
by  parol  evidence  and  given  their  proper  legal  effect — subject,  how- 
ever, to  the  rule  that  the  effect  of  the  deed  as  a  conveyance  and  as  to 
its  covenants  can  not  be  varied  by  such  proof.  Parol  evidence  can  not 
be  admitted  to  show  that  more  or  less  land  was  agreed  to  be  conveyed 
than  appears  in  the  deed  itself,  nor,  where  there  is  a  covenant  against 
such  incumbrances,  that  a  particular  incumbrance  was  to  be  excepted 
which  is  not  excepted  in  the  writing.  Thus  as  a  rule,  a  consideration 
different  from  that  recited  in  the  conveyance  may  be  shown  by  parol 
evidence.  It  is  clear,  therefore,  that,  in  the  absence  of  a  covenant 
against  incumbrances  in  the  deed  in  question,  the  appellee  would  have 
been  permitted,  in  any  proceeding  in  which  the  question  could  have 
arisen,  to  prove  by  such  evidence  that,  as  a  part  of  the  consideration 
for  the  conveyance  of  the  land,  the  appellant  agreed  to  pay  the  notes 
which  were  a  charge  upon  it.  But  there  being  a  covenant  against  in- 
cumbrances in  this  case,  the  result  of  such  proof  is  the  same  as  if  the 
notes  which  were  secured  by  a  vendor's  lien  upon  the  land  had  been 
expressly  excepted  from  the  covenant.  The  question  presents  itself, 
whether,  because  of  the  resulting  effect  upon  the  covenants  in  the 
deed,  the  grantor  is  deprived  of  the  right  of  showing  the  assumption 
of  the  notes  on  the  part  of  the  grantee — a  right  which  would  clearly 
have  been  his  had  he  not  covenanted  against  incumbrances.  While 
there  is  very  high  authority  to  the  contrary,  we  are  of  opinion  that 
it  does  not  (he  is  not).  The  agreement  of  the  grantee  to  pay  the  notes 
was  a  part  of  the  contract  for  the  exchange  of  the  lands,  but  was  not  a 
necessary  part  of  either  conveyance.  It  was  an  additional  considera- 
tion which  the  appellant  was  to  pay  for  the  premises  conveyed  to  him, 
which,  as  a  general  rule,  as  we  have  seen,  may  be  established  by  parol 
evidence.  It  was  a  part  of  the  original  contract  which  was  agreed  upon 
between  the  parties,  and  which  was  finally  consummated  by  their  re- 
spective conveyances.  The  ground  upon  which  the  authorities  which 
hold  parol  evidence  inadmissible  in  such  a  case  proceed,  is  that  the  effect 
of  the  proof  is  to  except  the  incumbrance  from  the  covenant  and  thus 
to  vary  the  contract  as  shown  by  the  writing.  But  does  proof  of  the 
promise  to  discharge  the  debt  which  is  a  lien  upon  the  land  except 
anything  from  the  covenant?  Does  it  conflict  with  or  is  it  inconsistent 
with  the  terms  of  the  conveyance?    We  think  not.    Qearly,  in  a  suit 


The;  Parol  Evideince  Rule  679 

for  a  breach  of  a  covenant  against  incumbrances,  it" could  be  shown  that 
a  lien  had  been  discharged  either  before  or  at  the  time  of  or  after  the 
execution  of  the  deed;  and  we  think  that  the  effect  of  the  promise 
which  was  proved  by  parol  in  this  case  was  not  to  except  the  vendor's 
lien  notes  from  the  covenant,  but  was  to  show  that  as  between  the  par- 
ties to  the  contract  the  incumbrance  had  been  discharged.  Is  the  ap- 
pellant to  be  permitted  to  claim  a  right  by  reason  of  the  nonpayment 
of  a  debt,  which,  by  his  own  promise,  he  became  primarily  liable  to 
pay?  Does  it  lie  in  his  mouth  to  complain  that  his  grantor  has  not 
done  that  which  he  bound  himself  to  do?.  The  lien  remained  after  his 
promise,  but  as  between  him  and  the  grantor,  it  was  no  longer  an  in- 
cumbrance resting  upon  the  latter,  but  one  which  he  had  taken  upon 
himself.  It  seems  to  us  that  although  this  is  a  question  of  law,  the 
equitable  principle  should  apply,  that  that  is  considered  as  done  which 
ought  to  be  done,  and  that  as  between  the  parties  the  lien  should  be 
held  to  be  discharged. 

For  the  reasons  given,  we  are  of  opinion  that  the  majority  of  the 
Court  of  Civil  Appeals  was  correct  in  holding  that  parol  evidence  was 
admissible  to  show  that  at  the  time  of  the  execution  of  the  deed  in 
question  it  was  agreed  between  the  parties  that  the  grantees  assumed 
the  payment  of  the  notes  which  were  a  charge  upon  the  premises,  and 
our  opinion  will  be  so  certified. 


WEBSTER  &  HUBBARD  v.  PAUL. 
< 

10  Ohio  5J7.     (i860)  ' 

James  R.  Paul  sued  Daniel  A.  Webster  and  Jasper  M.  Hubbard,  as 
partners,  under  the  firm  name  of  Webster  &  Hubbard,  on  an  account 
connected  with  a  transaction  in  hogs  between  the  parties. 

Webster  put  in  his  own  answer,  and  in  it  claimed,  in  substance, 
that  there  was  no  partnership  between  him  and  Hubbard  in  the  trans- 
action; that  there  was  a  written  contract  between  him  and  Paul  for. 
the  sale  and  delivery  of  the  hogs,  and  that  the  contract  had  been 
violated  by  Paul,  and  that  there  was  a  large  sum  due  him  (Webster), 
for  which  he  asked  for  a  judgment  against  Paul. 

Hubbard,  in  his  answer,  denied  that  he  was  indebted  to  Paul  in  any 
sum,  and  denied  that  he  was  a  partner,  or  had  any  interest  in  the  hogs 
at  the  time  the  contract  was  made  by  Webster  and  Paul. 


68o  Cases  on  Evidence 

On  the  trial,  at  the  June  term,  1857,  of  the  District  Court,  certain 
evidence  was  offered  by  the  defendants  and  excluded  by  the  court, 
and  a  verdict  returned  for  the  plaintiff. 

Thereupon  the  defendants  moved  for  a  new  trial,  on  the  ground  that 
the  court  erred  in  overruling  the  testimony  offered  by  them.  The  court 
overruled  the  motion,  and  entered  judgment  on  the  verdict.  The  error 
now  relied  on  is,  that  the  court  erred  in  not  granting  a  new  trial. 

Gholson,  J.  The  contract  in  writing  shows  that  Paul  had  made  an 
advance  on  hogs,  which  he  was  to  ship  through  to  New  York,  and  do 
the  best  he  could  with  them- in  the  market.  We  infer  from  the  state- 
ments in  the  record  that  there  were  two  routes  for  the  shipment  which 
the  parties  intended  should  be  made — one  by  rail  and  steamboat,  and 
the  other  overland,  by  railroad  only.  The  object  of  the  evidence 
offered,  as  shown  by  the  first  bill  of  exceptions,  was  to  restrict  Paul 
in  shipping  the  hogs  to  the  former  of  the  two  routes. 

It  is  claimed  for  the  plaintiffs  in  error,  that  there  was  a  latent 
ambiguity ;  that  there  were  two  routes  to  New  York  well  known  to  the 
parties;  that  the  writing  did  not  specify  one  or  the  other,  and  therefore 
it  might  be  shown  which  the  parties  intended.  But,  we  think  there  is 
a  misapprehension  as  to  the  meaning  of  a  latent  ambiguity.  "A  latent 
ambiguity  is  where  you  show  that  words  apply  equally  to  two  differ- 
ent things  or  subject-matters."  Smith  v.  Jeffryes,  15  M.  &  W.  561. 
The  things  must  be  different,  and  the  parties  must,  on  account  of  such 
difference,  have  intended  one  and  not  the  other.  It  is  not  a  case  of  lat- 
ent ambiguity,  where,  according  to  the  language  of  the  contract,  the 
parties  may  have  intended  either  of  the  two  things  in  which  the  differ- 
ence is  claimed  to  exist.  Thus  in  the  case  just  cited,  where  the  con- 
tract was  to  deliver  "ware  potatoes,"  and  evidence  was  offered  to  show 
that  there  were  two  kinds  of  "ware  potatoes,"  known  in  the  market 
as  "regents  wares"  and  "kidney  wares,"  and  that  the  former  were  in- 
tended, it  was  held,  that  there  was  not  a  latent  ambiguity,  and  that 
the  evidence  "went  to  vary  and  limit  the  written  contract  between  the 
parties." 

Upon  a  like  principle  and  distinction,  stands  the  case  of  a  written 
contract  to  do  a  particular  thing  where  there  are  two  usual  and  ordi- 
nary modes  in  which  it  may  be  done.  The  party  upon  whom  per- 
formance devolves,  may  adopt  either.  If,  in  this  case,  it  might  be  an 
advantage  to  Paul  to  select  one  or  the  other  of  the  two  routes,  as  for> 
example  on  account  of  its  being  more  rapid,  and  thereby  securing  him 
an  earlier  return  of  the  money  he  had  advanced,  he  had  the  right  so  to 
do,  according  to  the  terms  of  the  written  contract.     That  he  might 


The  Parol  Evidence  RulB  68i 

properly  have  done  so  under  that  contract,  is  admitted  by  the  offer  to 
prove  a  verbal  contract  which  would  restrict  the  right.  To  allow  this 
would,  we  think,  in  the  language  before  used,  vary  and  limit  the  writ- 
ten contract  between  the  parties. 

Our  attention  has  been  directed  to  the  case  of  Barrett  v.  Allen,  lo 
Ohio  Rep.  426.  In  that  case,  evidence  was  received  to  explain  the 
meaning  of  the  expression,  "fair  wholesale  factory  prices."  The 
words  had  no  definite,  precise  meaning,  and  therefore  required  expla- 
nation. This  might  have  been  given  by  showing  a  general  usage  and 
practice  in  the  particular  trade  or  business.  Lewis  v.  Marshall,  7  M. 
&  G.  729-744;  Syers  v.  Jonas,  2  Exch.  111-116;  Brown  v.  Byrne,  3 
Ell.  &  Black,  703-715.  So  it  is  permissible  "to  show  in  what  sense 
words  are  used,  by  showing  what  the  situation  of  the  parties  was  at 
the  time."  Bainbridge  v.  Wade,  16  Q.  B.  89-98.  Evidence  of  the  cir- 
cumstances and  relation  in  which  the  parties  stood,  may  be  let  in  to 
explain  the  meaning  of  language,  whenever  it  tends  to  throw  light  upon 
that  meaning.  Id.  71  Eng.  Com.  L.  loi,  note,  and  cases  cited.  "Parol 
evidence  was  clearly  admissible  to  show  the  circumstances  under  which 
the  contract  was  made,  and  the  relation  of  the  plaintiff  and  defendant 
to  it,  and  to  each  other,  in  respect  to  it."  Humphrey  v.  Dale,  7  Ell.  & 
Black,  266-272.  According  to  these  rules,  the  evidence  in  the  case  of 
Barrett  v.  Allen  was  properly  received.  Something  was  said,  by  the 
judge  delivering  the  opinion,  as  to  there  being  a  latent  ambiguity.  We 
think  the  case  more  properly  came  within  the  rules  which  have  been 
stated.  But  in  no  view,  according  to  the  proper  meaning  of  a  latent 
ambiguity  as  before  explained,  would  that  case  reach  such  a  case  as 
the  present.  The  parties  in  that  case  could  not  have  intended  either 
of  the  two  prices  proved,  but  must  have  intended  to  provide  for  one 
price  only. 

We  think  there  was  no  error  in  this  case,  and  the  judgment  must 
be  affirmed. 

Brinkerhoff,  C.  J.,  and  Scott,  Sutuff  and  Peck,  JJ.,  con- 
curred. 


682  Cases  on  Evidence 

HARRISON  V.  MORRISON. 

5P  Minn.  sip.     (1888) 

Mitchell,  J.  The  proposed  defense  is  that  when  the  promissory 
notes  in  suit  were  executed,  there  was  an  oral  agreement,  annexed  as 
a  condition  to  their  payment,  that  if  the  defendant  should  be  forced  to 
make  an  assignment  for  the  benefit  of  his  creditors,  under  chapter  140, 
Laws  1881  (which  he  was),  the  plaintiffs  should  file  their  claims  on 
the  notes  with  the  assignee,  as  provided  by  the  statute,  and  execute 
and  file  with  the  clerk  of  the  court  a  full  release  to  the  defendant  of 
all  claims,  other  than  such  as  might  be  paid  by  the  assignee  under  the 
provisions  of  the  statute.  This  is  clearly  inadmissible,  under  the  famil- 
iar rule  that  the  terms  of  a  written  contract  cannot  be  contradicted, 
altered,  added  to,  or  varied  by  oral  evidence.  By  their  terms  the  de- 
fendant promises  to  pay  absolutely  the  full  amount  of  the  notes  at  the 
dates  therein  named,  the  proposed  parol  evidence  had  no  tendency  to 
prove  either  a  want  or  failure  of  consideration,  but  merely  to  show  that 
a  condition  was  annexed  to  the  manner  of  payment,  and  amount  to  be 
paid,  different  from  that  expressed  in  the  notes.  The  notes  on  their 
face  purport  to  be  a  complete  expression  of  the  whole  agreement  of 
the  parties,  and  it  must  be  conclusively  presumed  that  they  have  intro- 
duced into  them  every  material  term  of  the  contract.  It  is  not  a  case 
where  the  agreement  was  oral,  and  the  writings  executed  in  perform- 
ance of  part  of  the  agreement,  leaving  another  and  separate  part  of 
it  still  wholly  in  parol,  as  in  Healy  v.  Young,  21  Minn.  389.  Neither  is 
it  a  case  of  a  separate  collateral  agreement  upon  a  matter  distinct  from 
that  to  which  the  writings  relate,  and  upon  which  they  are  silent.  On 
the  contrary,  the  oral  agreement  relates  to  the  very  matter  covered  by 
the  writings,  and  is  inconsistent  with  their  express  terms.  Thompson 
V.  Libby,  34  Minn.  374  (26  N.  W.  Rep.  i)  ;  Underwood  v.  Simonds. 
12  Met.  275 ;  Allen  v.  Furbish,  4  Gray  504  (64  Am,  Dec.  87)  ;  Eighmie 
V.  Taylor,  98  N.  Y.  288.  This  renders  it  unnecessary  to  consider  the 
other  questions  discussed  by  counsel.  The  order  sustaining  the  de- 
murrer to  the  answer  must  be  affirmed. 


The  Parol  Evidence  Rule  683 

The  oak  ridge  company  v.  john  toole. 

82  N.  J.  541.    (19 1 2) 

Lewis,  V.  C. 

The  defendant  in  this  case  entered  into  a  written  agreement  with 
the  complainant  to  convey  a  tract  of  land  on  East  Thirty-third  street, 
in  the  city  of  Paterson,  New  Jersey,  fifty  feet  by  one  hundred  and 
twenty-five  feet,  as  part  consideration  for  a  house  and  lot  conveyed  to 
the  defendant.  The  defendant  in  making  the  conveyance  presumed 
that  he  had  legal  title  to  the  lots  but  after  entering  into  the  agreement, 
the  parties  discovered  that  he  had  title  only  to  a  tract  one  hundred  feet 
in  depth.  When  the  complainant  discovered  the  defective  title,  he 
called  upon  the  defendant  to  secure  the  additional  twenty-five  feet 
provided  for  in  his  deed  to  the  complainant.  They  had  some  consul- 
tations about  the  matter  and  finally  met  in  the  office  of  Sherwood  & 
Lockwood,  real  estate  agents  in  the  city  of  Paterson,  New  Jersey;  at 
the  time  of  the  meeting  they  were  accompanied  by  their  respective  at- 
torneys. After  some  discussion  of  the  subject  of  meeting,  they  en- 
tered into  an  agreement  wherein  the  defendant  contracted  that  if  he 
didn't  perfect  his  title  to  the  premises,  298  and  300  East  Thirty-third 
street,  Paterson,  New  Jersey,  the  tract  in  question,  within  two  months 
from  that  date,  that  he  would  purchase  from  the  Oak  Ridge  Company 
said  premises  at  the  price  of  $2,000. 

The  evidence  of  the  complainant  was  that  the  defendant  did  not  per- 
fect his  title  in  the  manner  aforesaid  and  that  it  is  entitled  to  a  decree 
compelling  the  defendant  to  repurchase  the  land  for  $2,000.  The  de- 
fendant admits  the  execution  of  the  agreement  and  insists  that  the  con- 
tract in  question  was  signed  by  the  parties  for  "selling  purposes,"  on 
the  understanding  that  it  would  not  be  considered  binding  on  the  de- 
fendant. The  treasurer  of  the  Oak  Ridge  Company  at  the  hearing 
was  the  only  witness  for  complainant  and  insisted  that  no  such  under- 
standing had  been  had  or  arrangement  been  made.  The  defendant 
alleged  that  he  had  given  complainant  the  agreement  upon  the  repre- 
sentation of  Mr.  Hapgood,  that  there  would  be  no  trouble  about  it, 
that  it  would  not  be  used  at  any  time,  and  that  his  company  simply 
wanted  it  for  "selling  purposes."  The  defendant  was  corroborated  by 
the  testimony  of  his  attorney,  Mr.  Lynch,  and  by  a  witness.  Miss  Lock- 
wood  ;  both  these  witnesses  stated  that  they  heard  the  conversation  be- 
tween Mr.  Toole  and  Mr.  Hapgood,  treasurer  of  the  Oak  Ridge  Com- 
pany, to  the  effect  that  the  price  named  in  the  agreement  was  placed 


684  Cases  on  Evidence 

there  for  "selling  purposes"  and  that  there  was  no  understanding  be- 
tween the  parties  that  Toole  should  t^ke  back  the  lots  at  the  sum  of 
$2,000. 

This  case,  it  seems  to  me,  establishes  the  rule,  that  if  the  parties  to 
an  agreement  stipulated  at  the  time  that  it  was  made  that  it  was  to  have 
no  binding  effect  upon  them,  then,  notwithstanding  their  execution  of 
the  agreement,  such  a  contract  is  of  no  force  and  effect  at  law  or  in 
equity.  The  rule  now  so  well  established  in  equity,  admitting  parol 
evidence  to  show  for  what  purpose  the  written  agreement  was  exe- 
cuted, was  properly  invoked  by  the  defendant.  The  evidence  leaves 
no  doubt  in  the  court's  mind  that  in  this  issue  the  agreement  between 
the  complainant  and  the  defendant  was  made  for  the  purpose  as  stated 
by  the  latter  and  his  witnesses.  It  is  inequitable  and  unjust,  therefore, 
for  the  complainant  to  enforce  the  agreement  of  April  13th. 


HARRY  B.  HATCH  v.  WM.  HYDE  AND  WM.  S.  HYDE. 
14   Ver.  25.     (1842) 

Assumpsit,  on  a  promissory  note.  The  defendant  pleaded  non  as- 
sumpsit and  a  special  plea  in  bar. 

The  County  Court  decided  that  the  special  plea  was  insufficient, 
and  the  defendants  excepted  to  the  decision. 

The  opinion  of  the  court  was  delivered  by 

Bennett,  J.  The  plea  in  bar  sets  up  a  parol  agreement  contempora- 
neous with  the  giving  of  the  note,  and  inconsistent  with  the  one  ex- 
pressed in  the  note.  The  horse,  though  lame  and  diseased,  was  clearly 
a  sufficient  consideration  for  the  note,  and  no  fraud  is  pretended.  The 
note  then,  being  upon  sufficient  consideration,  and  absolute  upon  the 
face  of  it,  cannot,  by  parol  evidence,  be  converted  into  one  payable 
upon  a  contingency.  Bentley  v.  Bradley,  8  Vt.  R.  243.  Isaacs  v.  El- 
kins,  II  Vt.  R.  679.  As  the  agreement,  set  up  in  the  plea  in  bar,  if 
made  upon  sufficient  consideration,  cannot  control  the  note,  it  is  im- 
possible that  it  should  furnish  good  matter  to  plead  in  bar.  The  right 
of  action,  established  by  the  note,  cannot  be  destroyed  by  setting  up  an 
opposing  agreement  which,  by  the  rules  of  evidence,  cannot  be  proved. 
The  plea  then  was  properly  met  by  a  demurrer.  If  it  had  been  tra- 
versed and  issue  joined,  it  might  have  been  a  question  whether  the 
rule  of  evidence,  excluding  parol,  might  not  have  been  waived. 


Th^  ParoIv  Evidence  Rule  685 

If  the  facts  set  up  in  the  plea  go  to  defeat  the  note,  as  has  been 
argued,  for  want  of  consideration,  they  would  have  availed  the  party 
under  the  general  issue.  Though  it  is  true  that  some  matters  w^hich 
may  be  given  in  evidence  under  the  general  issue,  in  assumpsit,  may 
also  be  pleaded  in  bar,  yet  it  is  not  such  matter  as  goes  to  deny  the  orig- 
inal cause  of  action.  The  consideration  is  of  the  very  essence  and 
foundation  of  the  promise,  and  a  plea,  in  effect,  denying  the  considera- 
tion amounts  to  the  general  issue,  and  is,  for  this  cause,  ill,  on  special 
demurrer.  Potter  v.  Stanley,  i  D.  Chip.  R.  243.  Gould's  PI.  334, 
sec.  56.  This  is  made  one  ground  of  demurrer.  The  plea  cannot  be 
sustained. 

The  judgment  of  the  County  Court  is  affirmed. 


MILLER  V.  SPRING  GARDEN  INS.  CO. 
202  Fed.  442.     (1913) 

In  error  to  the  District  Court  of  the  United  States  for  the  Northern 
Division  of  the  Eastern  District  of  Washington ;  Frank  H.  Rudkin, 
Judge. 

Action  by  Jacob  Miller  against  the  Spring  Garden  Insurance  Com- 
pany.   Judgment  for  plaintiff,  and  defendant  brings  error.    Affirmed. 

Gilbert,  Circuit  Judge.  Error  is  assigned  to  the  admission  of  tes- 
timony as  to  conversations  betwieen  the  plaintiff  and  the  insurance 
agent  who  procured  the  policy  concerning  the  alterations  that  were  be- 
ing made  in  the  plaintiff's  building,  and  error  is  assigned  to  the  con- 
clusion of  the  court  that  the  plaintiff  had  not  violated  the  provisions 
of  the  policy  by  having  carpenters  and  mechanics  engaged  in  building 
the  premises  for  a  period  of  more  than  15  days  after  the  policy  was 
executed  and  delivered,  without  the  consent  of  the  the  defendant,  and 
in  holding  that  the  work  done  upon  the  building  was  ordinary  altera- 
tions and  repairs  within  the  permission  contained  in  the  rider  to  the 
policy. 

The  disposition  of  the  case  in  this  court  depends  upon  the  question 
of  the  admissibility  of  the  oral  testimony  which  was  taken  to  show  that 
the  plaintiff  fully  explained  to  the  insurance  agents,  and  the  latter 
understood,  the  nature  of  the  alterations  which  were  being  made  in 
the  building  and  the  time  which  would  be  necessarily  taken  in  com- 
pleting the  same.    Testimony  of  that  nature  was  admitted  by  the  court 


686  Casks  on  Evidence 

below  as  explanatory  of  an  ambiguity  in  the  policy,  and  we  think  it  was 
properly  so  admitted.  The  defendant,  after  stipulating  in  the  printed 
policy  that  the  employment  of  merchants  in  building,  altering,  or  re- 
pairing the  premises  for  more  than  15  days  should  avoid  the  contract 
of  insurance,  attached  to  the  policy  a  typewritten  slip  or  rider.  "Per- 
mission granted  to  make  ordinary  alterations  and  repairs."  The  fact 
that  this  provision  was  attached  by  a  typewritten  slip  to  the  policy 
shows  that  it  was  to  express  the  intention  of  the  parties,  and  that  the 
printed  provision  in  regard  to  the  employment  of  mechanics,  and  at- 
tached another  special  provision  which  made  no  limitation  of  time 
whatever,  the  question  arose,  what  was  meant  by  the  second,  and  what 
were  the  "ordinary  alterations  and  repairs"  in  the  contemplation  of  the 
parties?  No  rule  of  evidence  was  violated  by  admitting  testimony  to 
show  what  that  intention  was,  and  what  were  the  circumstances  under 
which  the  rider  was  attached  to  the  policy.  In  cases  of  doubt  or  am- 
biguity the  negotiations  between  the  parties  are  properly  considered  in 
giving  construction  to  their  agreement.  Fire  Insurance  Co.  v.  Wick- 
ham,  141  U.  S.  564,  576,  12  Sup  Ct.  84,  35  L.  Ed.  860;  Seitz  v.  Brew- 
ers R.  M.  Co.,  141  U.  S.  510,  517,  12  Sup.  Ct.  46,  35  L.  Ed.  837;  Lind- 
blom  V.  Fallett,  145  Fed.  805,  76  C.  C.  A.  639;  Lilienthal  v.  Cart- 
wright,  173  Fed.  580,  97  C.  C.  A.  530;  Kilby  v.  Hinchman-Renton 
Fire  Proofing  Co.,  132  Fed.  957,  66  C.  C.  A.  67. 

It  was  proper  to  show,  therefore,  that  by  the  term  "ordinary  altera- 
tions" was  meant  the  very  alterations  and  changes  which  were  then 
being  made.  The  word  "alterations"  is  an  elastic  one,  and,  if  the  par- 
ties so  understood  its  use,  it  was  proper  to  show  their  understanding 
by  oral  testimony. 

We  find  no  error.    The  judgment  is  affirmed. 


THOMPSON  V.  LIBBY. 
34  Minn.  374.     (1885) 


Mitchell,  J.  The  plaintiff  being  the  owner  of  a  quantity  of  logs 
marked  "H.  C.  A.",  cut  in  the  winters  of  1882  and  1883,  and  lying  in 
the  Mississippi  river,  or  on  its  banks,  above  Minneapolis,  defendant 
and  the  plaintiff,  through  his  agent,  D.  S.  Mooers,  having  fully  agreed 
on  the  terms  of  a  sale  and  purchase  of  the  logs  referred  to,  executed 
the  following  written  agreement: 


The  Parol  Evidence  RulB  687 

"AGREEMENT. 

Hastings,  Minn,,  Tune  i,  1883. 

"I  have  this  day  sold  to  R.  C.  Libby,  of  Hastings,  Minn.,  all  my  logs 
marked  'H.  C.  A.',  cut  in  the  winters  of  1882  and  1883,  for  ten  dol- 
lars a  thousand  feet,  boom  scale  at  Minneapolis,  Minnesota.    Payments 
cash  as  fast  as  scale  bills  are  produced. 
(Signed)  "J.  H.  Thompson, 

"Per  D.  S.  MooERS. 
"R.  C.  Libby." 

This  action  having  been  brought  for  the  purchase-money,  the  de- 
fendant— having  pleaded  a  warranty  of  the  quality  of  the  logs,  alleged 
to  have  been  made  at  the  time  of  the  sale,  and  a  breach  of  it — offered 
on  the  trial  oral  testimony  to  prove  the  warranty,  which  was  admitted, 
over  the  objection  of  plaintiff  that  it  was  incompetent  to  prove  a  ver- 
bal warranty,  the  contract  of  sale  being  in  writing.  This  raises  the 
only  point  in  the  case. 

No  ground  was  laid  for  the  reformation  of  the  written  contract, 
and  any  charge  of  fraud  on  part  of  plaintiff  or  his  agent  in  making  the 
sale  was  on  the  trial  expressly  disclaimed.  No  rule  is  more  familiar 
than  that  "parol  contemporaneous  evidence  is  inadmissible  to  contra- 
dict or  vary  the  terms  of  a  valid  written  instrument,"  and  yet  none  has 
given  rise  to  more  misapprehension  as  to  its  application.  It  is  a  rule 
founded  on  the  obvious  inconvenience  and  injustice  that  would  result 
if  matters  in  writing,  made  with  consideration  and  deliberation,  and 
intended  to  embody  the  entire  agreement  of  the  parties,  were  liable  to 
be  controlled  by  what  Lord  Coke  expressively  calls  "the  uncertain  tes- 
timony of  slippery  memory."  Hence,  where  the  parties  have  deliber- 
ately put  their  engagements  into  writing  in  such  terms  as  to  import  a 
legal  obligation,  without  any  uncertainty  as  to  the  object  or  extent  of 
such  engagement,  it  is  conclusively  presumed  that  the  whole  engage- 
ment of  the  parties,  and  the  manner  and  extent  of  their  undertaking, 
was  reduced  to  writing,  i  Greenl.  Ev.  sec.  275.  Of  course,  the  rule 
presupposes  that  the  parties  intended  to  have  the  terms  of  their  com- 
plete agreement  embraced  in  the  writing,  and  hence  it  does  not  apply 
where  the  writing  is  incomplete  on  its  face  and  does  not  purport  to 
contain  the  whole  agreement,  as  in  the  case  of  mere  bills  of  parcels, 
and  the  like. 

But  in  what  manner  shall  it  be  ascertained  whether  the  parties  in- 
tended to  express  the  whole  of  their  agreement  in  writing?  It  is  some- 
times loosely  stated  that  where  the  whole  contract  be  not  reduced  to 
writing,  parol  evidence  may  be  admitted,  to  prove  the  part  admitted. 


688  Cases  on  Evidence 

But  to  allow  a  party  to  lay  the  foundation  for  such  parol  evidence  by 
oral  testimony  that  only  part  of  the  agreement  was  reduced  to  writing, 
and  then  prove  by  parol  the  part  omitted,  would  be  to  work  in  a  cir- 
cle, and  to  permit  the  very  evil  which  the  rule  was  designed  to  pre- 
vent. The  only  criterion  of  the  completeness  of  the  written  contract 
as  a  full  expression  of  the  agreement  of  the  parties  is  the  writing  it- 
self. If  it  imports  on  its  face  to  be  a  complete  expression  of  the  whole 
agreement,  it  is  to  be  presumed  that  the  parties  have  introduced  into 
it  every  material  item  and  term ;  and  parol  evidence  cannot  be  admitted 
to  add  another  term  to  the  agreement,  although  the  writing  contains 
nothing  on  the  particular  one  to  which  the  parol  evidence  is  directed. 
The  rule  forbids  to  add  by  parol  where  the  writing  is  silent,  as  well  as 
to  vary  where  it  speaks — 2  Phil.  Evidence  (Cow.  &  H.  N.  Notes,) 
669;  Naumberg  v.  Young,  44  N.  J.  Law,  331;  Hei  v.  Heller,  53  Wis. 
415 — and  the  law  controlling  the  operation  of  a  written  contract  be- 
comes a  part  of  it,  and  cannot  be  varied  by  parol  any  more  than  what 
is  written.  2  Phil.  Ev.  (Cow.  &  H.  Notes,)  668;  La  Jarge  v,  Rickert, 
5  Wend.  187;  Creery  v.  Holly,  14  Wend.  26;  Stone  v.  Harmon,  31 
Minn.  512. 

The  written  agreement  in  the  case  at  bar,  as  it  appears  on  its  face, 
in  connection  with  the  law  controlling  its  construction  and  operation, 
purports  to  be  a  complete  expression  of  the  whole  agreement  of  the 
parties  as  to  the  sale  and  purchase  of  these  logs,  solemnly  executed  by 
both  parties.  There  is  nothing  on  its  face  (and  this  is  a  question  of 
law  for  the  court)  to  indicate  that  it  is  a  mere  informal  and  incom- 
plete memorandum.  Parol  evidence  of  extrinsic  facts  and  circum- 
stances would,  if  necessary,  be  admissible,  as  it  always  is,  to  apply  the 
contract  to  its  subject-matter,  or  in  order  to  a  more  perfect  under- 
standing of  its  language.  But  in  that  case  such  evidence  is  used,  not 
to  contradict  or  vary  the  written  instrument,  but  to  aid,  uphold,  and 
enforce  it  as  it  stands.  The  language  of  this  contract  "imports  a  legal 
obligation,  without  any  uncertainty  as  to  its  object  or  the  extent  of 
the  engagement,"  and  therefore  "It  must  be  conclusively  presumed 
that  the  whole  engagement  of  the  parties,  and  the  manner  and  extent 
of  the  undertaking,  was  reduced  to  writing."  No  new  term,  forming 
a  mere  incident  to  or  part  of  the  contract  of  sale,  can  be  added  by 
parol. 

That  in  case  of  a  sale  of  personal  property  a  warranty  of  its  quality 
is  an  item  and  term  of  the  contract  of  sale,  and  not  a  separate  and  in- 
dependent collateral  contract,  and  therefore  cannot  be  added  to  the 
written  agreement  by  oral  testimony,  has  been  distinctly  held  by  this 


The  Parol  Evidence  Rule  689 

court,  in  accordance,  not  only  with  the  great  weight  of  authority,  but 
also,  as  we  believe,  with  the  soundest  principles.  Jones  v.  Alley,  17 
Minn.  269,  (292.) 

In  opposition  to  the  doctrine  of  Jones  v.  Alley,  we  are  referred  to  a 
few  cases  which  seem  to  hold  that  parol  evidence  of  a  warranty  is  ad- 
missible on  the  ground  that  a  warranty  is  collateral  to  the  contract 
of  sale,  and  that  the  rule  does  not  exclude  parol  evidence  of  matters 
that  this  is  based  upon  a  misapprehension  as  to  the  sense  in  which  the 
term  "collateral"  is  used  in  the  rule  invoked.  There  are  a  great  many 
matters  that,  in  a  general  sense,  may  be  considered  collateral  to  the 
contract ;  for  example,  in  the  case  of  leases,  covenants  for  repairs,  im- 
provements, payment  of  taxes,  etc.,  are,  in  a  sense,  collateral  to  a 
demise  of  the  premises.  But  parol  evidence  of  these  would  not  be 
admissible  to  add  to  the  terms  of  a  written  contract.  So,  in  a  sense, 
a  warranty  is  collateral  to  a  contract  of  sale,  for  the  title  would  pass 
without  a  warranty.  It  is  also  collateral  in  the  sense  that  its  breach  is 
no  ground  for  a  rescission  of  the  contract  by  the  vendor,  but  that  he 
must  resort  to  his  action  on  the  warranty  for  damages.  But,  when 
made,  a  warranty  is  a  part  of  the  contract  of  sale.  The  common  sense 
of  men  would  say,  and  correctly  so,  that  when,  on  a  sale  of  personal 
property,  a  warranty  is  given,  it  is  one  of  the  terms  of  the  sale,  apd 
not  a  separate  and  independent  contract.  To  justify  the  admission  of 
a  parol  promise  to  one  of  the  parties  to  a  written  contract,  on  the 
ground  that  it  is  collateral,  the  promise  must  relate  to  a  subject  dis- 
tinct from  that  to  which  the  writing  relates.  Button  v.  Gerrish,  9 
Cush.  89;  Naumberg  v.  Young,  supra;  2  Taylor  Ev.  Sec.  1038.  See 
Lindley  v.  Lacey,  34  Law  J.,  C.  P.,  7. 

We?  have  carefully  examined  all  the  cases  cited  in  the  quite  exhaus- 
tive brief  of  counsel  for  defendant,  and  find  but  very  few  that  are  at 
all  in  conflict  with  the  views  already  expressed,  and  these  few  do  not 
commend  themselves  to  our  judgment.  Our  conclusion  therefore  is 
that  the  court  erred  in  admitting  parol  evidence  of  a  warranty,  and 
therefore  the  order  refusing  a  new  trial  must  be  reversed. 


690  Casks  on  Evidence 

COFFMAN  V.  MALONE. 
p8  Neb.  819.     (1915) 

MoRRissEY,  C.  J.  Amos  Snyder,  Matt  Malone  and  Samuel  J.  Coff- 
man  owned  all  of  the  capital  stock  in  a  corporation  called  the  Snyder- 
Malone-Coffman  Company,  which  was  doing  a  live  stock  commission 
business  in  South  Omaha.  During  the  fall  of  191 2,  slight  differences 
as  to  the  conduct  of  the  business  arose,  and  December  12  the  following 
writing  was  drawn  up  and  signed  by  the  parties: 

"South  Omaha,  Neb.,  Dec.  12,  1912.  We,  Amos  Snyder  and  S.  J. 
Coffman,  have  this  day  sold  our  interest  in  the  Snyder-Malone-Coff- 
man  Company  to  Matt  Malone.  The  said  Amos  Snyder  to  receive 
$1,500  for  his  interest,  and  said  S.  J.  Coffman  is  to  receive  $1,000  for 
his  interest,  and  said  business  is  to  be  turned  over  to  Matt  Malone  on 
December  31,  at  6  o'clock  p.  m.,  and  all  bills  to  be  paid  up  to  that 
time,  that  is,  owed  by  the  firm  of  Snyder-Malone-Coffman  Company, 
and,  after  the  bills  are  all  paid,  each,  Snyder  and  Coffman,  can  draw 
out  the  balance  they  have  to  their  credit.  Amos  Snyder  has  received 
on  this  contract  ($200)  two  hundred  dollars,  and  S.  J.  Coffman  has 
received  ($100)  one  hundred  dollars.  This  contract  made  and  signed 
by  Amos  Snyder,  S.  J.  Coffman  and  Matt  Malone  this  12th  day  of 
December,  1912. 

"Amos  Snyder, 

"S.   J.    COEFMAN, 

"Matt  Malone." 
December  31,  1912,  Snyder  delivered  his  stock,  tendered  his  resig- 
nation as  president  of  the  corporation,  and  received  from  Malone  the 
balance  due.  Four  or  five  days  thereafter  the  articles  of  incorpora- 
tion were  redrafted  and  Coffman  and  Malone  signed  the  same.  Coff- 
man made  no  assignment  of  his  stock,  and  neither  made  nor  tendered 
his  resignation  as  an  officer  of  the  corporation  until  January  15,  191 3, 
when  he  made  an  assignment  of  his  stock  and  tendered  the  same,  to- 
gether with  his  resignation,  to  Malone,  and  demanded  the  amount 
stipulated  in  this  writing.  Malone  refused  to  receive  the  stock  or  res- 
ignation or  to  pay  over  the  money,  and  Coffman  brought  suit  upon 
the  contract. 

Malone  by  answer  alleged  that  the  writing  was  executed  for  the  sole 
purpose  of  purchasing  the  interest  of  Amos  Snyder,  but  it  was  drawn 
in  the  form  set  out  because  they  wanted  Snyder  to  believe  that  Coff- 
man was  also  retiring  from  the  business ;  that  there  was  a  contempora- 


The;  Parol  Evidence:  Rulb  691 

neous  oral  agreement  between  him  and  Coffman  that,  as  between  them, 
it  was  not  to  be  performed;  that  there  was  no  deUvery  of  the  writing 
to  CoflFman;  and  that  the  check  which  was  deHvered  was  not  to  be 
cashed,  but  was  to  be  returned  again  by  Coffman  to  Malone.  There  is 
an  allegation,  also,  that  after  Snyder  retired  from  the  business,  and 
after  the  expiration  of  the  time  fixed  by  this  writing  for  the  transfer 
of  Coflfman's  stock,  Coffman  participated  in  the  election  of  himself  as 
secretary  of  the  company,  and  that  he  continued  to  act  for  and  in  be- 
half of  the  company  until  January  15,  1913;  that  under  their  oral 
agreement  Malone  was  to  transfer  certain  of  Snyder's  shares  of  stock 
to  Coffman,  which  Malone  was  ready  and  willing  to  do,  but  Coffman 
did  not  have  the  money  to  pay  therefor,  and,  upon  Malone's  refusal 
to  accept  Coffman's  note  in  lieu  of  cash,  Coffman  attempted  to  re- 
pudiate the  oral  agreement  and  to  enforce  this  writing. 

A  jury  was  waived  and  the  cause  tried  to  the  court.  Oral  testi- 
mony was  admitted  in  support  of  the  allegations  of  the  answer.  But 
at  the  conclusion  of  the  trial,  on  motion  of  the  plaintiff,  the  court 
struck  from  the  record  the  testimony  which  had  been  received  in  proof 
of  the  oral  agreement,  and  entered  judgment  for  plaintiff  for  the 
amount  due  under  the  writing.  There  are  three  assignments  of  error  ; 
but,  as  the  one  directed  against  the  ruling  of  the  court  in  striking  this 
evidence  goes  to  the  merits  of  the  whole  controversy,  it  is  the  only  one 
we  will  consider.  If  the  ruling  in  that  regard  is  correct,  the  judgment 
is  warranted  by  the  pleadings  and  the  proof.  No  doubt  the  court  re- 
lied upon  the  general  rule  laid  down  in  Mattison  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  42  Neb.  545,  and  quoted  as  authority  in  Nebraska  Land  & 
Feeding  Co.  v.  Trauerman,  70  Neb.  795,  wherein  it  is  held:  "Parol 
evidence  is  incompetent  to  prove  a  contemporaneous  oral  agreement 
by  which  it  is  sought  to  change  or  alter  the  terms  of  a  written  contract 
and  the  result  of  which  would  be  to  change  the  effect  of  the  written 
contract  in  a  material  portion  and  to  insert  or  read  into  it  a  condition 
or  reservation  not  contained  in  it,  or  implied  by  its  terms" — while  the 
appellant  contends  that  the  rule  invoked  does  not  apply,  and  that  a 
party  who  had  been  induced  to  sign  a  written  contract  for  a  certain 
purpose  is  entitled  to  offer  oral  testimony,  for  the  purpose  of  showing 
that  it  was  never  intended  to  be  a  contract  or  to  be  of  binding  force 
between  the  parties.  It  is  not  contended  that  the  contract  is  ambigu- 
ous or  incomplete,  but  that  plaintiff  and  defendant  were  working  to- 
gether for  a  common  purpose;  that,  in  furtherance  of  this  common 
purpose,  it  was  executed  in  its  present  form ;  that  they  were  not  deal- 
ing one  with  the  other,  but  were  jointly  dealing  with  Snyder;  that, 


692  Cases  on  Evidence 

in  the  very  nature  of  things,  the  writing  could  not  contain  the  agree- 
ment between  Coffman  and  Malone,  because  that  would  defeat  its  pur- 
pose. If  there  was  no  intention  on  the  part  of  either  party  to  observe 
the  terms  of  this  writing,  as  between  them,  this  writing  was  not  the 
contract. 

This  evidence  was  not  offered  with  the  view  of  contradicting,  varj 
ing,  or  explaining  the  language  employed  in  the  written  instrument 
but  to  establish  a  fact  or  circumstance  collateral  to  the  original  writ- 
ing which  would  control  its  effect  or  operation  as  a  binding  engage- 
ment. On  either  theory  the  writing  is  precisely  what  both  parties  in- 
tended it  to  be.  If  there  was  an  express  agreement  between  Coffman 
and  Malone  that  it  was  not  to  be  carried  out,  Malone  in  signing  was 
acting,  not  alone  for  himself,  but  also  for  the  plaintiff,  and  in  that 
event  it  never  became  a  binding  obligation.  "The  existence  of  a  writ- 
ten contract  or  instrument,  duly  executed  between  the  parties  to  an 
action  and  delivered,  does  not  prevent  the  party  apparently  bound 
thereby  from  pleading  and  proving  that  contemporaneously  with  the 
execution  and  delivery  of  such  contract  or  instrument  the  parties  had 
entered  into  a  distinct  oral  agreement  which  constitutes  a  condition  on 
which  the  performance  of  the  written  contract  or  agreement  is  to  de- 
pend."   Norman  v.  Waite,  30  Neb.  302. 

In  Barnett  v.  Pratt,  37  Neb.  349,  in  discussing  a  somewhat  similar 
question,  the  court  said:  "It  is  settled  by  a  considerable  line  of  au- 
thority that  where  the  execution  of  a  written  agreement  has  been  in- 
duced upon  'the  faith  of  an  oral  stipulation  made  at  the  time,  but 
omitted  from  the  written  agreement,  though  not  by  accident  or  mis- 
take, parol  evidence  of  the  oral  stipulation  is  admissible,  although  it 
may  add  to  or  contradict  the  terms  of  the  written  instrument." 

The  doctrine  laid  down  in  Norman  v.  Waite,  supra,  has  been  reiter- 
ated in  Davis  v.  Sterns,  85  Neb.  121,  First  Nat.  Bank  v.  Burney,  91 
Neb.  835,  and  is  the  settled  rule  in  this  state. 

This  evidence  having  been  erroneously  stricken  from  the  record  it 
follows  that  the  judgment  of  the  District  Court  must  be  revfersed  and 
the  cause  remanded. 

Reversed. 


The  Parol  Evidence  Rule  693 

HARDAGE  v.  DURRETT. 
no  Ark.  63.     (1913) 

Hart,  J.  This  is  an  action  of  contract  on  a  covenant  of  warranty 
against  encumbrances  in  a  deed  from  appellee  to  appellants.  The 
court,  sitting  as  a  jury,  found  in  favor  of  appellee,  and  from  the 
judgment  in  his  favor  appellants  have  duly  prosecuted  an  appeal 
to  this  court. 

At  the  time  of  the  execution  of  the  deed,  taxes  to  the  amount  of 
$99.10  had  been  duly  assessed,  levied  and  charged  against  the  land 
conveyed  by  the  deed.  It  is  admitted  that  the  unpaid  taxes  upon 
the  land  were  an  encumbrance  within  the  covenants  of  the  deed,  and 
such  is  the  effect  of  the  decisions  of  this  court.  William  Farrel  Lby. 
Co.  V.  DeShon,  65  Ark.  103;  Sanders  v.  Brown,  65  Ark.  498. 

Appellee  was  allowed  to  prove,  over  the  objection  of  appellants, 
by  parol  evidence,  that  at  the  time  the  deed  was  executed,  and  as  a 
part  of  the  consideration,  appellants  promised  to  pay  said  taxes; 
and  the  action  of  the  court  in  admitting  this  oral  testimony  is  as- 
signed by  appellants  as  error  for  which  the  judgment  should  be  re- 
versed. 

On  the  precise  issue  raised  by  the  appeal,  the  authorities  are  at 
variance.  The  courts  of  Maine  and  Indiana  hold  that  a  parol  agree- 
ment by  the  vendee  to  pay  taxes  which  are  a  lien  upon  the  land,  as 
a  part  of  the  consideration  of  the  conveyance,  is  a  good  defense  to 
an  action  on  the  covenants  of  the  deed.  Fitzer  v.  Fitzer,  29  Ind. 
468;  Dearbon  v.  Morse,  59  Me.  210.  So,  also,  in  the  case  of  John- 
son V.  Elmen,  94  Tex.  168,  the  court  held : 

"A  grantor  by  deed  of  general  warranty  (implying  a  covenant 
against  encumbrances)  when  sued  thereon  by  the  warranty  who  had 
been  dispossessed  by  a  purchaser  at  a  sale  under  foreclosure  of  an 
encumbrance  covered  by  such  warranty,  can  show  in  defense  a  parol 
agreement,  as  part  of  the  consideration,  that  the  vendee  should  him- 
self assume  and  pay  off  such  encumbrance." 

The  Supreme  Courts  of  Massachusetts  and  Ohio  have  held  that 
in  an  action  for  breach  of  a  covenant  of  warranty  against  encum- 
brances in  a  deed  which  consist  of  unpaid  taxes,  it  is  incompetent 
for  the  defendant  to  prove  by  parol  testimony  that  at  the  time  the 
deed  was  given,  and  as  a  part  of  the  consideration,  the  plaintiff  prom- 
ised to  pay  the  assessment.     Simanovich  v.  Wood,  13  N.  E.  (Mass.) 


694  Cases  on  Evidence 

391 ;  Flynn  v.  Bourneuf,  143  Mass.  277,  9  N.  E.  650;  Long  v.  Moler, 
5  Ohio  St.  271. 

The  Supreme  Court  of  Indiana  admits  that  the  doctrine  laid  down 
by  it  has  been  questioned  elsewhere  and  that  the  very  opposite  is 
held  in  many  of  the  States.  Some  of  the  courts  have  criticized  the 
Indiana  decision,  not  only  as  being  opposed  to  the  well-known  rule 
that  parol  evidence  is  not  admissible  to  vary  the  contract  as  shown 
by  the  writing,  but  as  being  productive  of  litigation,  as  is  evidenced 
by  the  number  of  decisions  on  this  question  in  that  State. 

In  the  case  of  Simanovich  v.  Wood,  supra,  the  court  said:  "While 
for  some  purposes  it  is  competent  to  show  what  the  real  considera- 
tion of  a  deed  is,  a  party  can  not,  under  the  guise  of  showing  what 
the  consideration  is,  prove  an  oral  agreement,  either  antecedent  to 
or  contemporaneous  with  the  deed,  which  will  cut  down  or  vary 
the  stipulations  of  his  written  covenant.  This  would  violate  the 
well-settled  rule  of  law  which  will  not  permit  a  written  contract  to 
be  varied  or  controlled  by  such  parol  testimony." 

To  the  same  effect  is  Devlin  on  Deeds  (i  ed.),  vol.  2,  914;  Rawle 
on  Covenants  of  Title  (5  ed.),  88. 

We  think  the  effect  of  our  previous  decisions  bearing  on  this  ques- 
tion is  to  exclude  parol  evidence  to  show  that  it  was  the  agreement 
of  the  parties  that  the  covenant  was  not  to  extend  to  a  particular 
encumbrance  not  expressly  excepted  from  its  operation.  In  the  case 
of  Barnett  v.  Hughey,  54  Ark.  195,  the  court,  in  discussing  the 
measure  of  damages  in  an  action  for  breach  of  covenant  said : 

"In  such  actions,  parol  evidence  is  admissible  on  the  part  of  the 
plaintiff  to  show  that  the  actual  consideration  was  greater  than  that 
expressed  in  the  deed  for  the  purpose  of  increasing  the  damages, 
and  on  the  part  of  the  defendant  to  show  that  it  was  such  for  the 
purpose  of  diminishing  them;  but  not  for  the  purpose  of  defeat- 
ing the  deed  or  recovery  on  the  covenants." 

Therefore,  we  hold  that  aside  from  the  question  of  fraud  or  mis- 
take parol  evidence  is  not  admissible  to  show  that  a  covenant  against 
encumbrances,  where  no  exception  is  contained  in  the  deed  itself, 
was  not  intended  by  the  parties  to  apply  to  a  particular  encumbrance. 

It  followed  that  the  judgment  must  be  reversed  and,  the  case  hav- 
ing been  fully  developed,  judgment  will  be  entered  here  for  $99.10, 
the  amount  sued  for. 


The  Paroi.  Evideince  Rule  695 

MILLER  BROS.  v.  McCALL  CO. 
S7  Okla.  643.    (1913) 

Opinion  by  Brewer,  C.  The  McCall  Company,  a  corporation, 
sued  Miller  Bros.,  a  partnership,  in  the  District  Court  of  Oklahoma 
County  for  a  balance  due  for  goods  sold  and  delivered,  in  the  sum 
of  $909.10,  under  a  written  contract  between  the  parties,  and  for 
damages  on  account  of  a  breach  of  the  contract  by  Miller  Bros. 

The  cause  was  tried  to  a  jury  and  a  verdict  was  rendered  in 
favor  of  the  plaintiff  for  $909.10,  which  was  the  amount  of  balance 
due  for  goods  received  by  defendants,  less  payments  made. 

The  defendants  below  appealed  the  case  under  '27  separate  as- 
signments of  error. 

On  the  first  point,  sufficiently  presented  in  the  brief,  i.  e.,  that 
the  court  erred  in  refusing  to  permit  them  to  prove  that  contem- 
poraneously with  the  execution  of  the  written  contract  a  verbal  one 
was  made  that  defendants  should  have  the  exclusive  sale  of  plain- 
tiff's goods  in  Oklahoma  City,  it  is  not  suggested  in  what  way  this 
evidence  would  have  been  of  value  to  them  if  admitted.  They  did 
not  claim  that  any  one  else  did  have  the  sale  of  the  goods,  thus  de- 
priving defendants  of  expected  profits;  in  fact  it  is  admitted  that 
such  was  not  the  case.  The  trial  court  held  that  the  written  con- 
tract which  detailed  its  terms  and  conditions  fully  and  with  minute 
particularity  could  not  be  changed  or  varied  in  its  terms  by  oral 
proof,  and  that  to  admit  the  proof  offered  would  have  that  effect. 
The  court  was  right.  When  persons  meet  and  negotiate  concern- 
ing a  contract  and  discuss  its  proposed  terms  and  conditions,  and 
finally  end  the  matter  by  executing  a  written  contract  fully  covering 
the  subject,  it  represents  the  final  agreement  of  the  parties,  and 
oral  evidence  tending  to  vary,  contradict,  enlarge,  or  narrow  the 
terms  of  the  writing  is  not  admissible. 

The  instrument  involved  here  is  admittedly  a  contract,  is  free 
from  fraud,  accident,  or  mistake,  and  covers  fully  the  details  of  its 
subject-matter.  Under  similar  circumstances  this  court  in  South- 
ard V.  Arkansas  Valley  &  W.  Ry.  Co.,  24  Okla.  420,  103  Pac.  755, 
has  ruled: 

"For  the  instrument  here  involved  is  admittedly  a  contract,  and 
under  the  authorities  cited  by  the  plaintiff  in  error  it  is  not  per- 
missible to  prove  a  parol  contemporaneous  contract  to  add  to,  vary, 
or  contradict  a  written  contract,  unless  under  proper  allegations  as 


696  Cases  on  Evidence 

to  fraud,  accident,  or  mistake.  This  rule  is  supported  by  practi- 
cally an  unbroken  line  of  authority  where  the  common  law  con- 
trols. Engelhorn  v.  Reitlinger  et  al.,  122  N.  Y.  79,  25  N.  E.  297, 
9  L.  R.  A.  548;  Wilson  V.  Deen,  75  N.  Y.  531;  Hubbard  v.  Mar- 
shall, 50  Wis.  327,  6  N.  W.  497;  Undersood  v.  Simmonds,  12  Mete. 
(Mass.)  2.']'j\  Fawkner  v.  Smith  Wall  Paper  Co.,  88  Iowa  169, 
55  N.  W.  200,  45  Am.  St.  Rep.  230;  Sandage  v.  Studebaker  *  Bros. 
Mfg.  Co.,  142  Ind.  157,  41  N.  E.  380,  34  L.  R.  A.  363,  51  Am.  St. 
Rep.  165;  Baum  v.  Lynn,  72  Miss.  932,  18  South.  428,  30  L.  R. 
A.  441 ;  Ferguson  v.  Rafferty,  128  Pa.  337,  18  Atl.  484,  6  L.  R.  A. 
33;  Parker  v.  Morrill,  98  N.  C.  232,  3  S.  E.  511;  Eighmie  v.  Taylor, 
98  N.  Y.  288;  Wigmore  on  Evidence,  sec.  2433." 

Affirmed. 


WARE  V.  ALLEN. 
128  U.  S.  590.     (1888) 


In  Equity.     Decree  dismissing  the  bill.     Complainant  appealed. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  Mississippi. 

W.  P.  Ware  was  the  plaintiff  below,  and  from  a  decree  dismissing 
his  bill  he  has  taken  this  appeal.  The  action  was  brought  upon  a 
written  instrument,  of  which  the  following  is  a  copy: 

"New  Orleans,  Nov.  7th,  1881. 

"Ninety  days  after  date  we  promise  to  pay  W.  P.  Ware  or  order 
ten  thousand  dollars  for  two  notes  of  T.  P.  Ware  for  five  thou- 
sand dollars  each,  dated  August  21,  '81,  one  on  demand  and  one  at 
30  days,  provided  we  are  not  defeated  in  the  suit  against  T.  P. 
Ware;  if  so,  this  note  is  void. 

"Yours  truly, 
"(Signed)  AllEn,  West  &  Bush." 

The  testimony  is  ample  to  show  that  before  the  paper  was  signed 
or  agreed  upon,  it  was  distinctly  understood  that  it  was  to  be  of 
no  effect  unless,  upon  consultation  with  Judge  Harris  or  J.  M. 
Allen,  or  both  of  them,  the  defendants  were  assured  that  the  pro- 
ceeding was  lawful  and  the  attachment  for  the  full  amount  of  both 
claims   could  be  enforced.     It  is  very  true  that  the  plaintiff  does 


The  Parol  Evidence  Rule  697 

not  agree  to  this,  in  the  full  extent  in  which  it  is  thus  stated  by  at 
least  two  or  three  witnesses,  but  all  the  circumstances  go  to  con- 
firm the  truth  of  this  statement  of  what  actually  occurred. 

We  are  quite  clear  that  the  testimony  does  establish  the  agree- 
ment alleged  by  the  defendants  to  have  been  made  at  the  various 
interviews  between  the  persons  composing  the  firm  of  Allen,  West 
&  Bush,  or  some  of  them,  and  the  plaintiff,  at  and  before  the  time 
when  they  delivered  to  him  the  instrument  sued  on  and  received  from 
him  the  two  notes  made  by  his  brother,  T.  P.  Ware;  that  the  firm 
were  to  have  an  opportunity  to  consult  counsel,  upon  whom  they 
relied  as  to  the  validity  of  the  transaction;  and  that  if  such  advice 
was  adverse,  then  the  instrument  given  by  them  was  to  be  of  no 
effect. 

It  also  sufficiently  appears  that  they  were  advised,  without  hesi- 
tation, by  the  counsel  to  whom  they  had  reference  in  those  con- 
versations about  the  agreement,  that  the  transaction  was  not  one 
that  would  stand  the  test  of  a  legal  investigation.  This  is  to  be 
considered  in  connection  with  the  fact  that  the  firm  only  brought 
suit  for  their  own  claim,  and  have  since  returned,  or  offered  to 
return,  the  notes  of  W.  P.  Ware,  which  were  given  him  by  his 
brother  and  delivered  to  them  when  the  paper  was  executed. 

We  are  of  opinion  that  this  evidence  shows  that  the  contract  upon 
which  this  suit  is  brought  never  went  into  effect;  that  the  condi- 
tion upon  which  it  was  to  become  operative  never  occurred,  and 
that  it  is  not  a  question  or  contradicting  or  varying  a  written  in- 
strument by  parol  testimony,  but  that  it  is  one  of  that  class  of  cases, 
well  recognized  in  the  law,  by  which  an  instrument,  whether  deliv- 
ered to  a  third  person  as  an  escrow  or  to  the  obligee  in  it,  is  made 
to  depend,  as  to  its  going  into  operation,  upon  events  to  occur  or  be 
ascertained  thereafter. 

The  present  case  is  almost  identical  in  its  circumstances  with  that 
of  Pym  v.  Campbell,  in  the  Court  of  Queen's  Bench,  6  Ell.  &  Bl. 
370,  373.  The  defendants  in  that  case  had  signed  an  agreement  for 
the  purchase  of  an  interest  in  an  invention,  which  the  evidence  showed 
was  executed  with  the  understanding  that  it  should  not  be  a  bar- 
gain until  a  certain  engineer,  who  was  to  be  consulted,  should  ap- 
prove of  the  invention.  There  was  a  verdict  for  the  defendants, 
which  was  sustained,  and  the  following  language  was  used  by  Erie, 
J.,  on  discharging  the  rule  to  show  cause:  "I  think  that  this  rule 
ought  to  be  discharged.  The  point  made  is  that  this  is  a  written 
agreement,  absolute  on  the   face  of  it,  and  that  evidence  was  ad- 


698  GvsES  ON  Evidence 

mitted  to  show  that  it  was  conditional;  and  if  that  had  been  so,  it 
would  have  been  wrong.  But  I  am  of  opinion  that  the  evidence 
showed  that  in  fact  there  was  never  any  agreement  at  all.     *     *     * 

"If  it  be  proved  that  in  fact  the  paper  was  signed  with  the  eX' 
press  intention  that  it  should  not  be  an  agreement,  the  other  party 
cannot  fix  it  as  an  agreement  upon  those  signing.  The  distinction 
in  point  of  law  is  evidence  to  vary  the  terms  of  an  agreement  in 
writing  is  not  admissible,  but  evidence  to  show  that  there  is  not 
an  agreement  at  all  is  admissible." 

'  In  this  view  the  other  judges,  including  Lord  Campbell,  Chief 
Justice,  concurred,  holding  that  it  having  been  explained  to  the  plain- 
tiff that  the  defendants  did  not  intend  the  paper  to  be  an  agree- 
ment until  the  engineer  had  been  consulted,  and  his  approval  ob- 
tained, and  was  signed  only  because  it  was  not  convenient  for  them 
to  remain,  it  was  therefore  no  agreement,  the  plaintiff  having  as- 
sented to  this  and  received  the  writing  on  these  terms. 

Affirmed. 


FARWELL  V.  ST.  PAUL  TRUST  CO. 
43  Minn.  495.     (i8pi) 

Plaintiffs  presented  a  claim  of  $44,374.02,  with  interest,  against 
E.  Allen  &  Co.,  insolvents,  to  the  defendant,  which  was  receiver  of 
the  insolvent  firm,  which  claim  was  wholly  disallowed  by  it.  Plain- 
tiffs thereupon  appealed  to  the  district  court  for  Ramsey  county, 
where  the  action  was  tried  before  Kelly,  J.,  who  ordered  judgment 
allowing  the  claim  to  the  amount  of  $31,444.49.  Plaintiff's  appeal 
from  the  judgment. 

Collins,  J.  Allen  and  Levinson  were  general  partners,  looking  after 
a  mercantile  business  in  St.  Paul.  Appellants  were  engaged  in  the 
wholesale  trade  in  Chicago,  where  Ettelsohn  resided.  E.  Allen  & 
Co.,  the  insolvents,  were  dealing  quite  extensively  with  appellants, 
and  Ettelsohn  was  attending  to  nearly  all  of  their  part  of  the  busi- 
ness. E.  Allen  &  Co.  had  an  opportunity  to  sell  a  bill  of  goods  to 
Long  &  Glennon,  traders  at  Mankato,  Minn.,  upon  time.  Ettelsohn 
called  upon  appellants  in  reference  to  such  a  sale,  and  it  was  agreed 
that  if  the  sale  was  made  the  latter  would  take  Long  &  Glennon's 
notes  upon  account,  when  indorsed  by  Ettelsohn  personally  and  by 


Th^  Paroi,  Evidence  Rvht  699 

his  firm.  The  sale  was  made,  and  the  purchasers  executed  13  prom- 
issory notes,  bearing  date  April  9,  1888,  payable  to  their  own  order 
at  intervals  of  15  days,  the  first  235  days  from  date.  These  notes 
were  then  indorsed  by  Long  &  Glennon,  delivered  to  Allen  &  Co., 
and  immediately  forwarded  to  Ettelsohn,  who  at  once  placed  his  own 
name  and  that  of  the  firm  upon  the  back  of  each,  and  delivered  them 
to  appellants,  with  the  understanding  that  they  should  be  discounted. 
This  was  done  by  appellants,  and  the  trial  court  found  as  a  fact  that 
the  proceeds  were  applied  by  the  latter  in  payment  of  the  balance 
then  owing  appellants  by  Allen  &  Co.  on  account  of  goods  sold  be- 
tween September  i  and  December  31,  1888.  These  notes  were  made 
payable  at  the  office  of  the  makers  at  Mankato,  but  were  not  pre- 
sented there  or  elsewhere  for  payment  as  they  matured.  On  Janu- 
ary 19,  1889,  Long  &  Glennon  made  an  assignment  under  the  insol- 
vency act,  and  then  removed  from  the  state.  To  avoid  the  effect  of 
a  failure  to  present  the  notes  at  maturity,  to  give  notice  thereof,  and 
of  the  makers'  default,  appellants  offered  to  prove  on  the  trial  that, 
at  the  time  of  the  indorsement,  demand  upon  the  makers  at  maturity, 
notice  thereof,  and  of  non-payment,  were  verbally  waived  by  the 
indorsers,  Allen  &  Co.  The  question  is  by  no  means  a  new  one,  and 
goes  to  the  competency,  as  between  indorser  and  indorsee,  of  tes- 
timony tending  to  show  that  contemporaneously  with  the  indorse- 
ment, there  was  a  parol  agreement  which  materially  changed  the 
contract  from  what  it  appeared  to  be,  and  relieved  one  of.  the  par- 
ties from  the  performance  of  certain  acts  otherwise  resting  upon 
him.  To  put  it  in  other  words,  the  object  of  their  proposed  testi- 
mony was  to  transform  the  contract  from  one  of  conditional  to  one 
of  absolute  liability. 

From  the  earliest  history  of  the  state  this  court  has  steadily  re- 
sisted the  attempts  which  have  frequently  been  made  to  vary  or 
explain  by  parol  the  ordinary  indorsement  of  a  promissory  note,  by 
means  of  which  the  usual  liability  and  contract  of  the  indorser  might 
be  enlarged  or  diminished,  made  greater  or  less,  as  interest  demanded. 
The  most  notable  of  the  earlier  cases  was  that  of  Kern  v.  Von  Phul, 
7  Minn.  341  (426),  where  a  regular  indorser  in  blank  sought  to 
show  'that  he  was  an  indorser  without  recourse.  We  do  not  feel 
called  upon  to  review  this  line  of  cases,  but  content  ourselves  by 
saying  that,  while  this  precise  question  was  in  neither,  it  was  prac- 
tically settled  by  the  reasoning  and  conclusion  in  the  cases  of  First 
Nat.   Bank  v.  Nat.  Marine  Bank,  20   Minn.   49    (63) ;   Barnard  v. 


700  Cases  on  Evidence 

Gaslin,  23  Minn.   192;  and  Knoblauch  v.  Foglesong,  38  Minn.  352 
(37  N.  W.  Rep.  586). 

The  contract  of  indorsement  is  twofold, — ^that  of  sale  and  trans- 
fer, and  that  of  conditional  liability.  When  in  blank,  as  in  the  case 
at  bar,  all  of  the  authorities  concur  in  saying  that  a  well-defined 
contract  has  been  made,  as  full  and  complete  as  if  explicitly  ex- 
pressed in  writing.  On  what  principle  can  it  be  urged,  then,  that 
testimony  which  would  be  incompetent  and  inadmissible  to  vary,  alter, 
or  control  a  written  agreement  can  be  receivable  to  vary,  alter,  or 
control,  and  even  to  destroy,  the  contract  entered  into  by  the  regu- 
lar indorser  in  blank?  And  if  there  is  any  rule  of  evidence,  save 
in  a  few  exceptional  cases  referred  to  in  First  Nat.  Bank  v.  Nat. 
Marine  Bank,  supra,  whereby  parol  testimony  may  be  received  to 
vary  or  alter  the  contract,  at  what  point  short  of  that  whicli  may  to- 
tally destroy  it  can  the  line  be  drawn?  The  contract  is  admittedly 
of  the  same  force  as  though  it  were  reduced  to  writing,  and. for  that 
reason  it  can  only  be  limited  or  enlarged  or  impeached  with  safety 
by  the  same  class  of  testimony.  If  the  indorser  wishes  to  quahfy 
his  liability,  apt  words  are  in  common  use  which  he  must  adopt,  or 
he  must  in  some  other  manner  clearly  indicate  that  his  indorsement 
is  limited  to  a  transfer  of  the  paper,  and  nothing  more.  Tf  a  trans- 
fer of  title  is  desired,  with  a  complete  and  unconditional  assump- 
tion of  liability  by  the  indorser,  equally  as  apt  and  common  phrases 
are  at  hand  which  may  be  written  above  the  indorser's  signature, 
and  the  indorsee  must  see  to  it  that  they  are  used,  thus  relieving  the 
transaction  of  its  doubt  and  uncertainty.  We  regard  it  as  of  great 
importance  that  the  rule  respecting  negotiable  paper  should  be  clear, 
and  the  whole  story  of  its  obligation  should  appear  upon  it.  The 
indorsee  must  not  be  permitted,  as  against  the  indorser,  to  show  that 
at  the  time  of  the  indorsement  it  was  verbally  agreed  that  present- 
ment for  payment,  notice  thereof,  and  of  non-payment,  need  not  be 
made  or  given.  Bank  of  U.  S.  v.  Dunn,  6  Pet.  51;  Renner  v.  Bank 
of  Columbia,  9  Wheat.  581;  Dale  v.  Gear,  38  Conn.  15;  Bartlett  v. 
Lee,  33  Ga.  491;  Barry  v.  Morse,  3  N.  H.  132;  Charles  v.  Denis, 
42  Wis.  56;  Bank  of  Albion  v.  Smith,  27  Barb.  489;  Campbell  v. 
Robbins,  29  Ind.  271;  Rodney  v.  Wilson,  67  Mo.  123;  Hoare  v. 
Graham,  3  Camp.  57;  Free  v.  Hawkins,  8  Taunt.  92. 

Judgment  affirmed. 


The;  Paroi,  Evidence  Rui,e  701 

PALLISTER  V.  CAMENISCH. 
24.  Col.  App.  7p.     (19 1 2) 

The  facts  in  this  case,  so  far  as  we  deem  them  important,  are  sub- 
stantially as  follows:  Pallister,  the  appellant,  defendant  below,  pur- 
chased a  dairy  from  Camenisch,  appellee,  plaintiff  below,  inducing 
Camenisch  to  accept  as  part  payment  for  said  dairy  a  promissory 
note  for  $2,500,  payable  to  Pallister  and  signed  by  Benjamin  W. 
Ladd  and  S.  D.  Moss.  The  note  was  taken  by  Camenisch  at  its  face 
value,  with  the  accrued  interest,  and  Pallister  was  given  credit  on 
the  purchase  price  of  the  dairy  for  the  amount.  The  note  was  en- 
dorsed by  Pallister,  "without  recourse,"  and  delivered  by  him  to 
Camenisch.  Up  to  this  point  the  facts  are  undisputed.  On  substan- 
tially all  other  questions  of  fact  the  evidence  is  in  sharp  conflict. 

The  briefs  are  limited  to  the  discussion  of  two  questions,  and  we 
shall  accordingly  limit  our  consideration  of  the  case.  The  first  cause 
of  action  (the  only  one  we  shall  consider),  is  based  on  wilful  or 
actual  fraud.  In  it,  plaintiff  charges  defendant  with  liability,  be- 
cause of  wilful  and  fraudulent  misrepresentations  made  by  the  de- 
fendant, and  deceit  practiced  by  him  upon  the  plaintiff. 

Counsel  for  appellant  in  their  brief  contend,  first,  that  since  Pal- 
lister endorsed  the  note,  "without  recourse,"  he  thereby  made  it  plain 
that  he  would  not  be  responsible  for  its  payment ;  that  such  an  en- 
dorsement constituted  a  written  contract,  and  measured  his  full  ob- 
ligations, or  rather,  worked  his  release  from  all  further  obligations 
in  the  prentises.  In  other  words,  it  is  contended  that  in  writing  he 
declined  to  be  bound  in  any  way  for  and  on  account  of  the  note. 
Hence,  they  say,  to  attempt  to  hold  him  liable  by  reason  of  any  oral 
statement  that  he  may  have  made  at  or  before  the  date  of  transfer, 
would  be  to  vary  the  terms  of  a  written  contract  by  oral  agreement. 
Appellant  further  contends  that  he  ought  not  to  be  held  liable  for 
any  misrepresentations  he  may  have  made  to  appellee,  for  the  rea- 
son, as  he  says,  that  appellee,  having  undertaken  to  investigate  and 
ascertain  for  himself  the  financial  condition  of  the  maker  of  the  note, 
and  no  artifice  being  used  to  prevent  such  investigation  from  being 
full  and  complete,  the  conclusive  presumption  is  that  the  appellee 
relied  upon  the  result  of  his  own  investigations  rather  than  upon 
the  appellant's  statements.  Neither  of  these  arguments  impress  us 
as  being  sound  under  the  law  applicable  to  this  case,  and  the  facts 
disclosed  on  the  trial.     In  appellant's  brief  appears  the   following: 


702  Case;s  on  Evidence 

"That  his,  (appellant's)  endorsement  of  a  negotiable  instrument, 
whether  the  endorsement  be  general  or  qualified,  is  a  full  and  com- 
plete contract  with  full  and  complete  agreements  as  to  the  covenants 
of  the  endorser,  and  is  not  subject  to  be  varied  or  attacked  by  parol 
evidence."  This  statement,  and  the  authorities  oited  in  support 
thereof,  have  no  application  to  the  case  at  bar.  If  appellee  had  sued 
appellant  as  endorser  of  the  note,  or  by  reason  of  the  fact  that  he 
had  endorsed  it,  then  the  statement  quoted,  and  the  authorities  cited, 
would  be  applicable.  To  illustrate:  Had  Moss's  financial  condition 
at  the  time  the  alleged  false  representations  were  made,  been  sub- 
stantially as  represented  by  appellant,  but  thereafter,  through  adverse 
circumstances,  he  had  lost  his  fortune  and  been  reduced  to  the  state 
financially  in  which  he  really  was  ^t  the  time  these  representations 
were  made;  or  had  Moss  refused,  through  dilatoriness,  or  from 
other  ulterior  motives,  to  pay  the  note  when  it  became  due,  the 
endorsement  of  the  appellant,  "without  recourse,"  would  have  barred 
recovery  against  him.  Under  the  state  of  facts  assumed  here  by^ 
way  of  illustration,  the  contention  of  appellant  and  his  authorities 
would  be  sound.  But  we  have  no  such  case  before  us.  It  may  be 
conceded  that  had  appellant,  before  or  at  the  time  of  endorsing  the 
note,  said  to  appellee :  "Now,  I  am  going  to  endorse  this  note  'with- 
out recourse,'  but,  nevertheless,  if  the  defendant  does  not  promptly 
meet  his  obligations  and  take  up  the  note  at  maturity,  I  will,  not- 
withstanding I  have  endorsed  the  note  'without  recourse,'  see  that 
you  are  paid,"  the  appellant  could  not  have  been  held  liable  by  rea- 
son of  such  oral  undertaking  or  statement,  but  it  by  no  means  fol- 
lows from  this  concession  that  one  may  make  false  representations 
concerning  a  material  fact  affecting  the  value  of  a  note  which  he  is 
seeking  to  negotiate,  and  then  escape  responsibility  for  his  represen- 
tations simply  by  writing  the  words,  "without  recourse,"  after  his 
endorsement. 

We  perceive  no  reason,  either  in  law  or  in  common  sense,  why 
one  who  makes  false  representations  concerning  the  payor  of  a  prom- 
issory note  for  the  purpose  of  giving  to  the  note  he  is  attempting 
to  negotiate  a  false  or  fictitious  value,  ought  not  to  be  held  respon- 
sible for  his  statements  in  all  respects  as  though  such  statements 
had  been  made  of  and  concerning  real  estate  or  personal  property 
of  any  character.  To  so  hold  does. not  involve  any  doctrine  of  the 
law  merchant  or  the  provisions  of  our  negotiable  instruments  act, 
as  counsel  for  appellant  seem  to  think. 

Stripped  of  its  verbiage,  and  disregarding  all  specious  and  subtly 


The  Parol  Evidence  Rule  703 

reasoning,  the  situation  is  simply  this :  Pallister  received  valuable 
property  from  Camenisch  for  a  worthless  piece  of  paper;  his  false 
representations  led  appellee  to  conclude  that  the  paper  was  worth 
its  face ;  but  for  these  false  representations,  appellee  would  not 
have  closed  the  transaction  and  accepted  the  note.  Under  these  cir- 
cumstances, does  the  law  permit  Pallister  to  retain  the  property  and 
force  Camenisch  to  keep  the  worthless  paper  ?    We  think  not. 

Judgment  affirmed. 


SWAYNE  V.  FEL  ICE. 
84  Conn.  147.     (19 11) 


Action  to  recover  rent,  and  damages  for  alleged  breaches  of  cove- 
nants in  a  lease,  brought  to  the  City  Court  of  New  Haven  and  tried 
to  the  jury  before  Mathewson,  J. ;  verdict  and  judgment  for  the  de- 
fendants, and  appeal  by  the  plaintiff  for  alleged  errors  in  the  rul- 
ings and  charge  of  the  court.    Error  and  new  trial  ordered. 

Hall,  C.  J. 

One  of  the  answers  to  all  the  counts  alleges,  in  substance,  that 
the  plaintiff  fraudulently  procured  the  defendants  to  execute  the 
lease  in  question  by  representing  to  them  that  he  would  build  a 
dwelling-house  and  dig  a  well  upon  the  premises  for  the  use  of  the 
defendants,  and  would  incorporate  such  agreement  in  the  written 
lease  to  be  prepared,  and  by  falsely  and  fraudulently  stating  to  the 
defendants,  who  were  ignorant  and  unable  to  read  English,  that 
such  a  provision  was  incorporated  in  the  written  lease  which  they 
signed;  that  the  plaintiff  refused  to  build  the  house  and  dig  the  well, 
and  thereby  prevented  the  defendants  from  using  or  occupying  the 
premises,  and  compelled  them  to  abandon  them,  which  they  did  after 
due  notice  to  the  plaintiff. 

The  reply  denies  the  allegations  of  fraud. 

The  testimony  received  of  the  defendant  Ferrucci,  that  the  plain- 
tiff orally  promised  to  build  a  house  and  dig  a  well,  was  inadmis- 
sible for  the  purpose  of  proving  such  a  promise  of  the  plaintiff  as 
constituting  in  itself  a  defense,  or  of  proving  any  agreement  of  the 
parties  respecting  the  defendants'  occupation  of  the  premises  or  the 
conditions  under  which  the  defendants  were  to  pay  the  rent  reserved, 
different   from  those   stated   in  the   written   lease.      Such   testimony 


704  Cases  on  Evidence 

was,  however,  admissible  in  support  of  the  averments  of  fraud  con- 
tained in  the  answer,  when  offered  in  connection  with  evidence  that 
the  plaintiff  promised  to  have  such  agreement  incorporated  in  the 
written  lease,  and  evidence  that  he  falsely  represented  that  it  was, 
in  fact,  contained  in  such  lease.  As  we  read  the  record  it  was  only 
admitted  for  the  latter  purpose,  and  in  connection  with  evidence  of 
the  character  just  described. 

Reversed  and  a  new  trial  ordered  on  another  ground. 


FORSYTH  MFG.  CO.  v.  CASTLEN. 

112  Ga.  igp.    (1900) 

Cobb,  J.  Castlen  brought  suit  against  the  Forsyth  Manufacturing 
Company  upon  a  contract  of  which  the  following  is  a  copy :  "This 
agreement  made  and  entered  into  this  the  25th  day  of  April,  1898, 
by  and  between  the  Forsyth  Manufacturing  Company  of  the  first 
part,  and  A.  W.  Castlen  of  the  second  part,  both  of  the  county  of 
Monroe  and  the  State  of  Georgia,  witnesseth:  that  the  party  of  the 
first  part  hereby  agrees  to  pay  the  party  of  the  second  part  six  cents 
per  pound  for  one  hundred  and  fifty  bales  of  lint-cotton  to  be  deHv- 
ered  at  the  warehouse  of  said  Forsyth  Manufacturing  Company  on 
the  Central  Railroad  just  above  Forsyth,  in  good  merchantable  order, 
at  times  below  set  forth.  The  party  of  the  second  part  hereby  agrees 
to  deliver  at  the  place  above  designated  one  hundred  and  fifty  bales 
of  lint-cotton,  said  cotton  to  be  delivered  to  the  Forsyth  Manufac- 
turing Company  as  follows :  fifty  bales  in  September,  fifty  bales  in 
October,  and  fifty  bales  in  November,  1898,  at  the  place  above  set 
forth,  and  in  good  merchantable  order,  all  bales  to  weigh  more  than 
450  pounds  each;  and  should  the  party  of  the  second  part  fail  or 
refuse  to  furnish  the  full  amount  of  fifty  bales  each  month  as  above 
set  forth,  then  the  second  party  forfeits  one  half  cent  per  pound  for 
each  pound  not  delivered  at  the  end  of  each  month  of  fifty  bales." 
This  contract  was  signed  by  both  parties  mentioned.  At  the  trial  it 
appeared  that  Castlen  was  a  cotton-planter,  that  this  fact  was  known 
to  the  president  of  the  defendant  company,  and  that  at  the  date  the 
contract  was  entered  into  Castlen  had  upon  his  land  cotton  planted 
and  growing.  It  also  appeared  that  Castlen  had  delivered  to  the  de- 
fendant one  hundred  bales  of  cotton,  which  were   raised  upon  his 


The  Paroi.  Evidence;  Rule  705 

place,  and  which  were  received  by  the  defendant  and  paid  for  un- 
der the  contract.  Six  bales  raised  on  the  plaintiff's  place  were  de- 
livered and  received  in  due  time,  but  have  never  been  paid  for.  The 
plaintiff  tendered  to  the  defendant,  in  November,  a  sufficient  num- 
ber of  bales  to  complete  the  contract;  but  the  defendant  company 
refused  to  receive  and  pay  for  these  bales,  on  the  ground  that  they 
were  not  raised  upon  the  land  of'Castlen.  This  action  is  brought 
to  recover  for  the  six  bales  of  cotton  which  were  received  and  not 
paid  for,  and  for  damages  on  account  of  the  failure  to  receive  and 
pay  for  the  number  of  bales  tendered  in  November  which  were  nec- 
essary to^  complete  the  contract.  The  jury  under  the  charge  of  the 
court  returned  a  verdict  in  favor  of  the  plaintiff.  The  defendant 
made  a  motion  for  a  new  trial,  which  was  overruled.  The  case  is 
here  upon  a  bill  of  exceptions  assigning  error  upon  the  decision  of 
the  judge  overruling  a  demurrer  to  the  petition,  and  upon  the  judg- 
ment refusing  to  grant  a  new  trial. 

The  Civil  Code  declares  that  parol  evidence  is  inadmissible  to  add 
to,  take  from,  or  vary  a  written  contract,  or  to  contradict  or  vary 
the  terms  of  a  valid  written  instrument.  Civil  Code,  sees.  3675, 
5201.  When  parties  have  reduced  the  agreement  between  them  to 
writing,  they  must  abide  by  the  terms  of  the  writing,  whatever  they 
may  be,  and  nothing  in  the  writing  can  be  contradicted  or  varied  by 
parol  evidence.  If,  however,  "a  part  of  a  contract  only  is  reduced  to 
writing  (such  as  a  note  given  in  pursuance  of  a  contract),  and  it  is 
manifest  that  the  writing  was  not  intended  to  speak  the  whole  con- 
tract, then  parol  evidence  is  admissible."  Civil  Code,  sec.  3675  (i). 
"To  bring  a  case  within  the  rule  admitting  parol  evidence  to  com- 
plete an  entire  agreement  of  which  a  writing  is  only  a  part,  two 
things  are  essential.  First,  the  writing  must  appear  on  inspection 
to  be  an  incomplete  contract;  and  second,  the  parol  evidence  must 
be  consistent  with  and  not  contradictory  of  the  written  instrument." 
Bradner,  Evidence  (2d  ed.),  303.  See  also  Underbill,  Ev.  sec.  209, 
307;  Smith,  Ev.  214.  And  a  party  is  at  liberty  to  prove  "the  exist- 
ence of  any  separate  oral  agreement  as  to  any  matter  on  which  a 
document  is  silent,  and  which  is  not  inconsistent  with  its  terms,  if 
from  the  circumstances  of  the  case  the  court  infers  that  the  parties 
did  not  intend  the  document  to  be  a  complete  and  final  statement  of 
the  whole  of  the  transactions  between  them."  2  Whart.  Ev.  sec.  1026, 
p.  203.  See  also  Smith,  Ev.  553;  i  Gr.  Ev.  (i6th  ed.)  sec.  284a, 
p.  413;  Browne,  Parol  Ev.  sec.  50;  McKelvey,  Ev.  sec.  277.  It  ap- 
pears from  the  authorities  above  cited,  that,  in  order  to  render  parol 


7o6  Cases  on  Evidence 

evidence  admissible  for  the  purpose  of  making  complete  an  incom- 
plete contract,  the  fact  that  the  contract  is  incomplete  must  appear 
upon  the  face  of  the  contract  by  reason  of  a  patent  ambiguity,  or, 
although  apparently  complete  on  its  face,  in  the  light  of  evidence 
showing  the  circumstances  surrounding  the  parties  at  the  time  the 
contract  was  executed,  a  latent  ambiguity  that  it  may  in  like  man- 
ner be  relieved.  Civil  Code,  sees.  3675,  5202.  The  rule  is  thus  stated 
in  McMahon  v.  Tyson,  23  Ga.  43 :  "When  a  writing  is  such  that 
something  more  than  what  is  expressed  by  it  is  to  be  implied  from 
it,  parol  evidence  of  anything  not  inconsistent  with  that  unexpressed 
something  is  admissible."  In  that  case  it  appeared  that  a  note  was 
given  in  consideration  of  "rent,"  and  parol  evidence  was  admitted 
to  show  what  was  the  subject-matter  of  the  contract  to  rent.  In 
Johnson  v.  Patterson,  86  Ga.  725,  the  ruling  in  McMahon  v.  Tyson 
was  followed,  and  it  w^as  held  that  a  written  contract,  silent  or  am- 
biguous as  to  certain  matters,  may,  as  to  them,  be  explained  by  parol 
evidence  not  conflicting  with  anything  plainly  expressed  in  such  con- 
tract. In  Barclay  v.  Hopkins,  59  Ga.  562,  it  was  held:  "Where  the 
entire  contract  does  not  purport  to  be  in  writing,  parol  testimony  is 
admissible  to  show  all  other  terms  and  conditions,  not  inconsistent 
with  the  written  part."  There  are  many  decisions  by  this  court  re- 
lating to  this  subject,  but  it  would  be  useless  to  refer  to  or  cite  all 
of  them.  Enough  have  been  cited  to  show  that  this  court  has  rec- 
ognized the  rule,  that  in  order  to  allow  parol  evidence  to  be  admitted 
to  show  a  collateral  agreement  it  must  appear,  either  from  the  con- 
tract itself  or  from  the  surrounding  circumstances,  that  the  contract 
is  incomplete,  and  what  is  sought  to  be  shown  as  a  collateral  agree- 
ment must  not  in  any  way  conflict  with  or  contradict  what  is  con- 
tained in  the  writing.  An  examination  of  the  cases  decided  by  this 
court  will  show,  we  think,  that  this  rule  has  been  steadfastly  adhered 
to.  There  may  be  some  confusion  in  regard  to  the  way  in  which  it 
has  been  applied  in  some  cases,  and  possibly  there  have  been  erro- 
neous applications  of  the  rule;  but  no  case  has  been  called  to  our 
attention  where  there  has  been  any  departure  from  this  rule. 

It  follows  from  what  is  above  said,  that  the  court  did  not  err 
in  refusing  to  allow  the  defendant  to  prove,  as  a  collateral  agree- 
ment between  himself  and  the  plaintiflF,  that  the  cotton  specified  in 
the  contract  was  to  be  raised  on  the  lands  of  the  plaintiflF.  The  con- 
tract between  the  parties  evidenced  by  the  writing  calls  for  a  cer- 
tain number  of  bales  of  cotton  of  a  certain  description,  and  for  no 
particular  cotton.    It  is  clear  that,  so  far  as  the  terms  of  the  contract 


The  Parol  Evidence  Rule  707 

are  concerned,  the  parties  did  not  intend  that  the  plaintiff  should  be 
limited  to  cotton  raised  by  him.  It  was  a  plain  and  unambiguous 
contract  for  the  delivery  of  any  cotton,  answering  to  the  descrip- 
tion specified  in  the  contract,  which  the  plaintiff  might  see  fit  to  offer 
to  the  defendant  at  the  times  specified  in  the  contract.  Such  being 
the  legal  effect  of  the  paper,  parol  evidence  tending  to  show  that  the 
real  contract  was  that  the  cotton  was  to  be  raised  on  the  land  of  the 
plaintiff  contradicted  and  varied  and  altered  the  very  terms  of  the 
written  instrument.  There  being  no  patent  ambiguity  in  the  contract, 
of  course  parol  evidence  was  not  admissible  on  the  ground  that  such 
an  ambiguity  might  be  explained.  Evidence  showing  that  it  was  the 
intention  of  the  parties  to  make  a  contract  whereby  plaintiff  should 
be  confined  to  cotton  raised  on  his  own  lands  did  not  raise  a  latent 
ambiguity,  but  directly  impeached  an  unambiguous  instrument.  If 
such  evidence  could  be  held  to  raise  a  latent  ambiguity,  the  rule 
prohibiting  the  introduction  of  parol  evidence  would  be,  in  effect, 
abrogated.  If  such  was  the  intention  of  the  parties,  and  this  was 
omitted  from  the  contract  by  fraud,  accident,  or  mistake,  of  course 
the  defendant  would  have  a  right  in  a  court  of  equity  to  reform  the 
contract,  but  he  cannot  in  a  court  of  law  be  allowed  in  this  manner 
to  contradict  the  terms  of  a  plain,  unambiguous  paper  by  parol  evi- 
dence. 

There  was  no  error  in  overruling  the  defendant's  demurrer,  nor 
in  the  rulings  on  evidence  complained  of  in  the  motion  for  a  new 
trial. 

Judgment  affirmed.     All  the  Justices  concurring. 


ANTON  KNOBLAUCH  v.  ELIZABETH  E.  FOGLESONG. 

38  Minn.  352.     (1887-88) 

After  the  decision  of  the  former  appeal  in  this  action  (37  Minn. 
320),  the  action  was  tried  in  the  district  court  for  Hennepin  county, 
before  Rea,  J.,  and  a  jury,  and  a  verdict  was  directed  for  plaintiff, 
who  appeals  from  an  order  granting  a  new  trial. 

GiLFiLLAN,  C.  J.  Action  against  the  defendant  Grossman  as  maker, 
and  the  defendant  Foglesong  as  indorser,  of  a  promissory  note  made 
by  Grossman,  payable  to  the  order  of  Foglesong,  and  by  the  lat- 
ter indorsed  in  blank.     At  the  trial,  Foglesong  offered  to  prove  an 


7o8  Cases  on  Evidence 

oral  agreement,  made  at  the  time  of  the  indorsement,  between  the 
indorser  and  indorsee,  this  plaintiff  acting  for  the  latter,  that  the 
indorsee  would  look  for  his  pay  to  the  security  only  given  by  the 
maker  with  the  note  (to  wit,  a  mortgage  upon  real  estate),  and  not 
trouble  or  sue  the  indorser;  the  plaintiff  stating  that  he  wanted  the 
name  on  the  back  of  the  note  because  it  was  made  payable  to  order, 
and  the  indorsement  was  necessary,  and  should  be  treated  simply 
as  passing  the  title  to  the  notes ;  and  also  offered  to  prove  by  parol 
in  substance,  that,  prior  to  the  making  of  the  note,  Grossman  and 
Foglesong  were  negotiating  for  the  sale  of  certain  real  estate  by  the 
latter  to  the  former,  when  the  former  made  an  offer  for  the  real 
estate  of  $2,000  in  cash,  $2,000  in  other  lands,  and  $2,250  in  notes 
(one  of  them  the  note  in  suit),  to  be  secured  by  a  mortgage  on  the 
real  estate;  that  Foglesong  objected  on  the  ground  that  the  mortgage 
would  be  a  second  mortgage,  whereupon  plaintiff,  who  was  present 
and  had  heard  the  negotiations  and  offer,  agreed  that,  if  Foglesong 
would  take  the  notes  and  mortgage  at  $2,250,  he  would  purchase 
them,  and  count  on  the  notes.  Each  of  these  offers  was  objected 
to  as  incompetent  and  immaterial,  and  the  objection  was  sustained. 
After  a  verdict  for  the  plaintiff,  the  court  below,  conceding  that  it 
had  erred  in  excluding  the  evidence  granted  a  motion  by  defendant 
for  a  new  trial. 

The  objection  to  each  offer  was  rightly  sustained. 


BLAKCHARD  v.  RIDGEWAY. 
i/p  Mich.  401.     (1914) 

Moore,  J.     The  plaintiff  sued  defendant  upon  three  notes. 

From  a  judgment  in  favor  of  the  plaintiff,  the  case  is  brought  here 
by  writ  of  error. 

The  defendant  attempted  to  show  by  the  cross-examination  of  the 
plaintiff  for  what  consideration  the  notes  were  given,  and  that  they 
were  drawn  by  plaintiff,  and  were  for  a  larger  amount  than  the  debt 
of  defendant.  Defendant  also  attempted  to  show  by  his  own  testi- 
mony that  the  facts  stated  in  the  notice  under  his  plea,  which  we 
have  quoted  were  true.  That  plaintiff  drew  the  notes  for  a  larger 
amount  than  he  should,  and  shoved  them  over  to  the  defendant,  who 
signed  them,  relying  upon  the  statements  of  the  plaintiff  that  they 
were  drawn  for  the  proper  amount.     This  testimony  was  excluded 


Th^  Parol  Evidence  Rulb  709 

upon  the  theory  that  the  amounts  stated  in  the  notes  must  control, 
and  that  to  permit  the  testimony  would  be  to  allow  a  written  instru- 
ment to  be  contradicted  or  varied  by  parol.  It  must  be  remembered 
that  the  plaintiff  is  the  payee.    No  third  party  is  interested. 

The  testimony  was  competent  under  Anderson  v.  Walter,  34  Mich. 
113;  Soper  V.  Peek,  51  Mich.  563  (17  N.  W.  57)  ;  Maltz  v.  Fletcher, 
52  Mich.  484  (18  N.  W.  228)  ;  Alacomb  v.  Wilkinson,  83  Mich.  486 
(47  N.  W.  336);  Phelps  V.  Abbott,  114  Mich.  88  (72  N.  W.  3); 
Brown  v.  Smedly,  136  Mich.  65  (98  N.  W.  856),  and  the  many 
authorities  cited  in  the  last-named  case. 

As  this  conclusion  must  reverse  the  case,  it  will  not  be  necessary 
to  refer  to  the  other  assignments  of  error,  as  the  same  situation 
cannot  arise  again. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 

McAlvay,  C.  J.,  and  Brooke,  Kuhn,  Stone,  Ostrander,  Bird. 
and  SteerE,  JJ.,  concurred. 


CENTRAL  SAVINGS   BANK  v.  O'CONNOR. 

132  Mich.   578.     (1903) 

Montgomery,  J.  This  action  is  brought  upon  two  promissory  notes 
aggregating  $1,523.47,  made  by  the  defendant  O'Connor  and  indorsed 
by  the  defendant  Hammond.  The  notes  bear  date  February  i,  1901. 
The  plaintiff  made  its  case  by  introducing  them  in  evidence.  The 
defendants  then  offered  to  show  by  a  parol  agreement  made  at  the 
time  said  notes  were  executed,  and  which  is  set  out  in  a  notice  under 
the  general  issue,  in  substance  as  follows :  That  the  notes  were  given 
for  the  amount  of  a  chattel  mortgage  which  plaintiff  held  upon  the: 
property  of  the  J.  R.  Pearson  Company,  which  property  defendant 
O'Connor  had  purchased ;  that  the  title  to  said  notes  never  passed 
to  said  plaintiff;  that  the  notes  were  delivered  to  plaintiff  upon  the 
clear  and  distinct  understanding  and  condition,  agreed  to  by  said 
plaintiff  that  in  case  the  said  J.  R.  Pearson  Company  should  there- 
after be  forced  into  bankruptcy  by  any  of  its  creditors,  upon  pro- 
ceedings instituted  by  them  for  that  purpose,  and  adjudicated  a  bank- 
rupt, said  notes  would  thereupon,  in  the  event  of  the  happening  of 
such  contingency,  become  and  be  null  and  of  no  effect,  and  were 
not  to  be  paid,  and  that  it  was  upon  said  condition  said  notes  were 


710  Cases  on  Evidence 

delivered  to  said  plaintiff;  and  that  it  accepted  and  held,  and  still 
holds,  them,  and  each  of  them. 

The  evidence  of  the  defendants  upon  this  subject,  which  is  most 
favorable  to  the  defense,  is,  in  substance,  this :  That  the  notes  were 
executed  in  consideration  of  the  transfer  by  the  plaintiff  to  the  de- 
fendant of  a  chattel  mortgage  and  accompanying  note  of  the  J.  R. 
Pearson  Company,  which  note  was  indorsed  by  J.  R.  Pearson,  F. 
H.  Crawford,  and  A.  J.  Franklin.  Defendant  testifies  that,  after 
the  notes  were  signed  and  indorsed  he  then  said  to  Mr.  Fox,  plain- 
tiff's representative: 

"These  notes  are  delivered  to  you  on  the  condition  that  if  this 
concern  is  put  in  bankruptcy  by  reason  of  any  of  these  creditors 
petitioning  because  of  this  chattel  mortgage  having  been  given,  or  an 
execution  having  been  levied  and  the  goods  sold  under  the  execution, 
which  are  both  acts  of  bankruptcy,^  then  the  notes  are  to  be  null 
and  void;  and  Mr.  Fox  says.  That  is  my  understanding  of  it,  and 
I  accept  them  so;'  and  he  says,  'You  know  that  there  is  nothing  go- 
ing to  be  done  about  it.'  " 

On  the  trial  of  the  caseHhe  court  submitted  the  case  to  the  jury 
upon  the  instruction  that,  if  the  claim  set  up  by  the  defense  was 
true,  the  plaintiff  could  not  recover.  The  jury  returned  a  verdict 
for  the  defendants.  Afterwards  a  motion  for  a  new  trial  or  for  the 
entry  of  a  judgment  non  obstante  veredicto  was  entered,  and  the 
court,  after  consideration,  entered  a  judgment  for  the  plaintiff  non 
obstante  veredicto.    The  defendants  bring  error. 

The  meritorious  question  is  whether  the  defense  set  out  in  this 
notice  is  one  which  can  be  established  by  parol  testimony.  It  is 
doubtless  true,  as  contended  by  the  appellants  counsel,  that  it  may 
be  shown  that  a  promissory  note,  unconditional  in  terms,  was  condi- 
tionally delivered  that  is  to  say,  that  it  was  placed  in  the  hands  of 
the  payee,  but  with  the  distinct  understanding  that  it  was  not  to  be 
operative  or  to  become  a  binding  obligation  until  the  happening  of 
some  event.  Brown  v.  St.  Charles,  66  Mich.  71  (32  N.  W.  926)  ; 
Burke  v.  Dulaney,  153  U.  S.  228  (14  Sup.  Ct.  816).  On  the  other 
hand,  the  rule  is  firmly  established  that  where  a  promissory  note  for 
a  certain  amount,  payable  at  a  certain  time,  is  delivered  into  the 
hands  of  the  payee,  to  take  effect  presently  as  the  obligation  of  the 
defendant,  parol  evidence  to  introduce  conditions  or  modifications 
of  the  terms  is  not  admissible.  The  case  of  Hyde  v,  Tenwinkel,  26 
Mich.  93,  illustrates  this  rule.  It  was  there  held  that  an  attempt  to 
show  a  verbal  contemporaneous  agreement  to  reduce  a  note   from 


The  Parol  Evidence  Rule  711 

an  absolute  and  specific  promise  to  a  defeasible  engagement  was  in- 
admissible. The  same  rule  has  been  followed,  one  of  the  recent 
cases  being  Phelps  v.  Abbott,  114  Mich.  88  {'J2.  N.  W.  3);  Burns 
&  Smith  Lumber  Co.  v.  Doyle,  71  Conn.  742  (43  Atl.  483,  71  Am. 
St.  Rep.  235).  We  think  it  clear  that  the  present  case  falls  within 
that  line  of  cases  which  precludes  parol  evidence  offered  to  vary  the 
terms  of  a  written  instrument.  If  we  adopt  the  testimony  of  the 
defendant  as  correctly  stating  the  transaction,  and  more  certainly  if 
we  adopt  the  terms  of  the  notice  of  defense  by  which  the  defendant 
was  bound,  these  notes  were  delivered  to  take  effect  presently,  but 
upon  the  alleged  parol  agreement  that  they  were  to  become  void  in 
the  event  that  a  certain  contingency  should  happen.  .  This  is  no 
more  than  averring  that  plaintiff  entered  into  a  contemporaneous 
parol  agreement  that,  while  the  defendant's  obligation  bound  him  to 
pay  absolutely  the  sums  of  money  at  specified  times,  yet  in  a  cer- 
tain contingency  this  sum  should  not  be  payable  at  all,  and  the  notes 
be  redelivered. 

It  is  suggested,  also  that  there  was  a  total  failure  of  considera- 
tion. This  cannot  be  held,  for  the  reason  that  there  was  transferred 
to  the  defendant,  in  consideration  for  the  notes  the  chattel  mortgage 
and  promissory  note  of  the  J.  R.  Pearson  Company,  which  note  had 
indorsers  against  whom  it  would  be  enforceable.  There  was  no  ab- 
solute and  total  failure  of  consideration,  and  no  defense  of  partial 
consideration  was  noticed  under  the  general  issue. 

We  think,  however,  that  the  practice  adopted  in  this  case  was  mis- 
taken. There  is  no  verdict  which  supports  the  judgm.ent  entered 
non  obstante  veredicto.  Had  there  been  a  special  verdict  inconsist- 
ent with  the  general  verdict,  such  a  judgment  might  have  been 
proper. 

We  think  the  case  should  be  reversed  and  remanded  for  a  new 
trial.     No  costs  will  be  awarded  to  either  party  on  this  hearing. 

The  other  Justices  concurred. 


712  Cases  on  Evidence 

WHEATON  ROLLER-MILL   COMPANY  v.  JOHN  T.   NOYE 
MANUFACTURING  COMPANY. 

66  Minn.  156.     (1896) 

Mitchell,  J.  This  action  was  brought  to  recover  damages  for 
the  breach  of  a  warranty  of  a  steam  engine,  boiler,  etc.,  furnished 
and  set  up  by  defendant  for  the  plaintiff  in  its  mill.  The  alleged 
warranty  was  that  the  machinery  was  well  made,  of  good  material, 
and  capable  of  operating  plaintiff's  mill  at  full  capacity;  the  part 
italicized  being  all  that  is  material  on  this  appeal.  It  appeared  on 
the  trial  thftt  the  machinery  was  furnished  under  the  written  con- 
tract found  in  full  in  the  paper  book,  at  folios  52  to  57,  which  is  so 
long  that  we  shall  leave  it  to  speak  for  itself,  without  attempting  here 
to  state  its  provisions.  The  plaintiff  then  offered  certain  parol  evi- 
dence, the  exclusion  of  which  by  the  court  forms  the  subject  of  the 
assignments  of  error. 

The  second  assignment  of  error  is  that  "the  court  erred  in  sus- 
taining defendant's  objection  to  plaintiff's  offer  to  prove  that  there 
was  an  express  oral  warranty."  This  refers  to  the  complex  and 
somewhat  obscure  and  indefinite  offer  found  at  the  bottom  of  page  12 
of  the  record. 

Some  parts  of  this  offer  were  clearly  inadmissible,  and  for  that 
reason,  if  no  other,  the  defendants  objection  was  properly  sustained. 
For  example,  the  offer,  in  part,  was  to  prove  that  there  was  an  oral 
agreement  that  the  machinery  should  fulfill  the  conditions  of  the 
written  agreement.  That  was  necessarily  one  of  the  terms  of  the 
written  agreement  itself,  whether  the  conditions  referred  to  in  the 
offer  were  expressed  or  implied.  But  what  we  infer  the  assignment 
of  error  means  is  that  the  court  erred  in  refusing  to  allow  the  plain- 
tiff to  prove  an  express  oral  warranty  as  alleged  in  the  complaint, 
that  the  machinery  would  be  capable  of  operating  plaintiff's  mill  at 
its  full  capacity.  It  will  be  observed  from  its  language  that  the 
offer  was  to  prove  an  oral  warranty  made  in  connection  with,  and 
at  the  same  time  as,  the  written  agreement.  Assuming  that  such  a 
warranty  as  suggested  could  be  spelled  out  of  the  offer,  and  that  it 
was  made  in  proper  form,  still  the  evidence  was  properly  excluded 
under  the  familiar  rule  that  parol  evidence  is  inadmissible  to  vary 
the  terms  of  a  written  contract. 

Plaintiff's  contention  is  that  it  does  not  fall  within  that  rule;  that 
the  offer  was  merely  to  prove  a  separate  oral  agreement  as  to  a 


The  Parol  Evidence  Rule  713 

matter  on  which  the  writing  was  silent,  and  which  was  not  incon- 
sistent with  its  terms.  The  rule  thus  sought  to  be  invoked  is  one 
which  both  courts  and  text  writers  have  found  some  difficulty  in 
formulating  so  as  to  be  at  once  complete  as  well  as  accurate. 

All  the  authorities  are  substantially  agreed  that  where,  in  the  ab- 
sence of  fraud,  accident,  or  mistake,  the  parties  have  deliberately  put 
their  contract  into  a  writing  which  is  complete  in  itself,  and  couched 
in  such  language  as  imports  a  complete  legal  obligation,  it  is  con- 
clusively presumed  that  they  have  introduced  into  the  written  in- 
strument all  material  terms  and  circumstances  relating  thereto.  But 
the  point  upon  which  the  courts  have  sometimes  differed  is  as  to 
how  the  incompleteness  of  the  written  contract  may  be  made  to 
appear.  Some  cases  seem  to  go  to  the  length  of  holding  that  this 
may  be  done  by  going  outside  of  the  writing,  and  proving  that  there 
was  a  stipulation  entered  into  but  not  contained  in  it,  and  hence  that 
only  part  of  the  contract  was  put  in  writing.  If  any  such  doctrine 
is  to  obtain,  there  would  be  very  little  left  of  the  rule  against  vary- 
ing written  contracts  by  parol.  Such  is  not  the  law.  Other  cases 
seem  to  go  almost  to  the  other  extreme,  by  holding  that  the  incom- 
pleteness of  the  writing  must  appear  on  the  face  of  the  document 
from  mere  inspection.  But  to  furnish  a  basis  for  the  admission  of 
parol  evidence  the  incompleteness  need  not  be  apparent  on  the  face 
of  the  instrument. 

If  the  written  contract,  construed,  in  view  of  the  circumstances  in 
which,  and  the  purpose  for  which,  it  was  executed, — which  evidence 
is  always  admissible  to  put  the  court  in  the  position  of  the  parties 
shows  that  it  was  not  meant  to  contain  the  whole  bargain  between 
the  parties,  then  parol  evidence  is  admissible  to  prove  a  term  upon 
which  the  writing  is  silent,  and  which  is  not  inconsistent  with  what 
is  written;  but,  if  it  shows  that  the  writing  was  meant  to  contain 
the  whole  bargain  between  the  parties,  no  parol  evidence  can  be  ad- 
mitted to  introduce  a  term  which  does  not  appear  there.  In  short, 
the  true  rule  is  that  the  only  criterion  of  the  completeness  of  the 
written  contract  as  a  full  expression  of  the  agreement  of  the  par- 
ties is  the  writing  itself;  but,  in  determining  whether  it  is  thus  com- 
plete, it  is  to  be  construed,  as  in  any  other  case,  according  to  its 
subject  matter,  and  the  circumstances  under  which  and  the  purposes 
for  which  it  was  executed. 

Applying  the  rules  which  we  have  laid  down,  parol  evidence  to 
prove  a  warranty,  which  was  part  of  the  prior  or  contemporaneous 


714  Cases  on  Evidence 

agreement,  and  about  which  the  written  contract  was  silent,  was  clearly 
inadmissible. 

Order  affirmed. 


TOWNSEND  V.  FONTENOT,  Sheriff. 
42  La.  An.  890.     (i8po) 

McEnery,  J.  This  is  a  suit  to  restrain  the  execution  of  a  judg- 
ment of  the  District  Court  of  the  parish  of  St.  Landry  in  a  suit  en- 
titled J.  U.  Payne  &  Co.  v.  A.  C.  Townsend. 

The  ground  for  the  injunction  is  that  the  execution  was  prema- 
turely issued  as  the  judgment  creditors  had  granted  a  stay  of  execu- 
tion until  the  ist  day  of  January,  1890.  Damages  for  the  illegal 
seizure  are  claimed  to  the  amount  of  $9,000  against  the  judgment 
creditors,  and  the  Sheriff  in  solid 0. 

Henry  M.  Payne  sold  to  A.  C.  Townsend  the  undivided  half  of  the 
Anchorage  plantation,  part  cash  and  the  balance  on  terms  of  credit 
for  which  notes  were  executed  by  Townsend  and  the  usual  mortgage 
and  vendor's  privilege  retained  on  the  plantation,  to  secure  the  de- 
ferred payments. 

The  last  two  of  the  notes  were  acquired  by  Jacob  U.  Payne  &  Co., 
and  they  brought  suit  against  Townsend  on  the  first  maturity  of  the 
notes  to  enforce  payment,  with  recognition  of  the  mortgage  and 
vendor's  privilege.  The  defendant  Townsend  made  no  appearance 
in  said  suit.  When  the  default  was  made  final  and  judgment  ren- 
dered there  was  inserted  and  incorporated  in  the  judgment  the  fol- 
lowing statement: 

"The  attorney  of  the  plaintiff  in  this  suit  declares  that  he  has  been 
instructed  not  to  seize  or  sell  said  property  before  the  end  of  the 
year." 

The  defendants  contend  that  this  statement  did  not  operate  as  a 
stay  of  execution,  that  it  was  inserted  ex  gratia,  and,  as  incorporated 
in  the  judgment  is  meaningless. 

On  this  point  the  defendants  offered  in  evidence  the  testimony  of  J. 
U.  Payne,  Thomas  H.  Lewis  and  R.  W.  Foster,  to  explain  the  inser- 
tion of  said  statement  in  the  judgment.  It  was  properly  excluded  by 
the  District  Judge,  as  no  parol  testimony  can  be  received  to  vary, 
contradict,  explain  or  interpret  a  judgment.    The  defendants'  counsel, 


The  Parol  Evidence  RueE  715 

however,  states  that  such  was  not  the  intention  of  introducing  the 
evidence,  and  its  effects  would  not  be  to  contradict  or  vary  said  judg- 
ment, but  to  show  that  the  defendants  were  not  controlled  by  any  vin- 
dictive or  malicious  motives  in  executing  the  judgment.  But  in  this 
we  think  he  was  mistaken,  and  the  District  Judge  viewed  the  effects 
of  the  rejected  testimony  in  its  proper  bearing. 

It  is  immaterial  in  consideration  of  this  question  how  the  state- 
ment got  in  the  judgment.  It  was  prepared  and  written  by  plaintiffs' 
counsel,  and  must  have  been  placed  there  by  plaintiffs'  instructions. 
It  is  sufficient  to  show  that  it  was  there,  and  that  it  formed  a  part  of 
the  judgment,  as  binding  and  authoritative  as  any  other  recital  in  it. 


JOHNSON  V.  MANUFACTURING  CO. 
163  N.  C.  105.     (19 1 4) 

Ceark,  C.  J.  This  is  an  action  to  recover  damages  for  trespass  on 
the  "White"  tract  of  land,  which  the  plaintiffs  claim  title  to  under  the 
will  of  Sallie  E.  Ward,  described  as  "lying  on  the  White  Oak  road, 
and  adjoining  the  lands  of  Patterson  Rufl&n,  A.  S.  Rascoe,  and  others, 
and  containing  191  acres." 

The  second  and  third  exceptions  are  that  the  court  refused  to  allow 
the  deed  from  Sallie  E.  Ward  to  W.  A.  Ward  to  be  read  to  the  jury, 
and  excluded  all  evidence  offered  to  identify  the  land  described  in  it  and 
tending  to  show  what  the  50  acres  were  included  in  the  191  acres  of  the 
"White"  tract  claimed  by  plaintiffs.  This  deed  from  Sallie  E.  Ward 
had  been  put  in  evidence  without  objection;  but  when  the  defendant 
offered  to  read  it  to  the  jury  the  court  excluded  it,  holding  that,  as  a 
matter  of  law,  it  was  "void  for  lack  of  description,"  and  that  "the  deed 
did  not  describe  any  land."  The  description  is  "50  acres  adjoined  by 
P.  R.,  bound  on  the  White  Oak  road  and  joining  A.  S.  Rascoe  and  P. 
Ruffin."  The  deed  has  apt  words  of  conveyance  and  is  sufficiently 
formal.  It  does  not  convey  an  indefinite  50  acres  "out  of"  the  White 
land  but  a  tract  of  50  acres  which  was  a  part  oJF  the  White  land,  "on 
the  White  Oak  road"  adjoining  the  lands  of  A.  S.  Rascoe  and  P.  Ruffin. 

We  think  his  honor  erred  in  excluding  parol  testimony  to  identify 
this  tract  of  land.  It  was  a  latent  and  not  a  patent  ambiguity.  It  may 
be  that  the  defendant  could  have  shown  that  the  boundaries  had  been 
actually  run  and  marked.    At  any  rate,  it  was  not  impossible  to  lay  off 


7i6  Cases  on  Evidence 

50  acres  of  the  "White"  tract,  taking  the  White  Oak  road  as  one  bound- 
ary. The  other  boundary  in  such  case  (unless  it  had  been  actually 
run  and  marked)  would  have  been  parallel  to  said  White  Oak  road 
and  far  enough  from  it  to  make  up  the  acreage  of  50  acres.  In 
Parmer  v.  Batts,  83  N.  C.  387,  there  is  an  interesting  discussion  in 
which  the  cases  are  cited,  where  the  words  of  description  have  been 
held  too  indefinite  to  admit  of  parol  testimony,  and  other  cases  in 
which  the  description  has  been  held  sufficient.  We  think  this  case  falls 
in  the  latter  class. 

Among  the  later  cases  in  point  is  Hudson  v.  Morton,  162  N.  C,  6, 
in  which  the  court  held  that  a  description  "being  one  acre  of  land  ad- 
joining L.,  in  one  corner  of  the  field  now  turned  out  and  lies  near  and 
including  the  spring,  it  being  a  portion  of  the  H.  tract  conveyed  by 
D.  to  M.,"  was  held  sufficiently  definite  to  permit  of  parol  testimony 
to  fit  the  description  to  the  deed.  Among  the  cases  cited  therein  is 
Edwards  v.  Deans,  125  N.  C.  61,  where  a  deed  for  "30  acres  in  the 
western  part  of  a  tract  of  112  acres"  was  held  sufficient  to  offer  proof 
of  a  survey  of  said  30  acres,  followed  by  possession.  In  Perry  v. 
Scott,  109  N.  C.  374,  the  language,  "on  the  south  side  of  Trent  River 
adjoining  the  lands  of  Colgrove,  McDaniel  and  others,  containing  360 
acres,"  was  held  not  too  vague  and  indefinite  to  permit  identification 
by  parol. 

In  Stewart  v.  Salmonds,  74  N.  C.  518,  Pearson,  C.  J.  says  that  the 
words  "29  acres  off  the  north  end  of  a  tract  of  land  containing  129 
acres,  of  an  irregular  figure,  and  bounded  by  eight  lines,  all  straight, 
and  with  definite  courses  and  distances  can  be  ascertained  and  cut  off 
with  mathematical  precision.  The  question  is,  Can  the  29  acres  be 
identified  by  the  rules  of  mathematics  so  that  the  cutting  off  of  the  29 
acres  will  involve  no  discretion,  but  be  a  mere  ministerial  act?  We 
think  the  29  acres  can  be  identified  by  a  mere  ministerial  act."  This 
case  has  often  been  cited  and  approved ;  see  Anno.  Ed. 

In  Warren  v.  Makely,  85  N.  C.  12,  the  description  is:  "A  parcel 
of  land  lying  and  being  in  Currituck  Township,  near  the  head  of  Smith 
Creek,  being  the  easternmost  portion  of  the  farm  I  purchased  of  my 
brother,  John  E.  Fortescue,  known  as  the  Russel  land,  containing  100 
acres."  This  court  held  that  the  court  below  properly  refused  to  tell 
the  jury,  from  a  simple  inspection  of  the  deed,  that  the  100  acres 
could  not  be  ascertained,  and  added:  "If  the  larger  tract  be  known, 
it  is  apparent  the  area  of  100  acres  can  be  cut  off  from  its  eastern 
part  by  a  line  running  due  north  and  south."  To  similar  purport  is 
Webb  v.  Cummins,  127  N.  C.  41,  and  Shaffer  v.  Hahn,  11 1  N.  C,  at 


The  Parol  Evidence;  Rule'  717 

p.  II.  Here  the  description,  "50  acres  on  the  White  Oak  road,"  is 
sufficient  to  admit  of  parol  proof. 

In  Cox  V.  Cox,  91  N.  C.  256,  the  court  held  that  the  acreage  is 
material  in  questions  of  doubtful  boundary.  Here  the  50  acres  is  a 
part  of  the  "White"  tract  and  is  on  the  White  Oak  road.  That  is  to 
say  the  land  being  a  part  of  the  "White"  tract,  and  one  boundary, 
"the  White  Oak  road,"  being  given,  as  well  as  the  adjoining  owners, 
P.  R.  Ruffin  and  A.  S.  Rascoe,  parol  testimony  was  admissible  either 
to  show  an  actual  survey,  if  one  had  been  made,  and  possession  there- 
under, as  in  Edwards  v.  Dean,  supra,  or  the  tract  could  be  located,  as 
we  have  said,  by  running  a  line  parallel  with  the  White  Oak  road  so 
as  to  cut  off  50  acres,  as  in  Stewart  v.  Salmonds  and  Warren  v. 
Makely  and  other  cases,  supra. 

As  these  errors  require  a  new  trial,  it  is  unnecessary  to  discuss  the 
other  exceptions. 

Error. 


WHITBY  V.  MOTZ. 
125  Minn.  40.     (191 4) 


Ella  Whitby  petitioned  the  probate  court  for  Wabasha  county  that 
in  its  final  decree  in  the  matter  of  the  estate  of  George  Motz,  deceased, 
it  assign  to  her  such  portion  of  the  estate  of  decedent  as  though  he 
had  died  intestate,  petitioner  being  a  daughter  and  having  been  omitted 
from  the  last  will  and  testament  of  decedent,  and  it  not  appearing  that 
such  omission  was  intentional,  Mary  Motz,  the  executrix  and  residuary 
legatee  of  the  estate,  objected.  Ella  Whitby,  having  been  omitted  from 
any  share  of  the  estate  by  the  terms  of  the  final  decree  appealed  there- 
from to  the  district  court  for  Wabasha  county.  The  appeal  was  heard 
before  Snow,  J.,  who  made  findings  and  ordered  judgment  affirming 
the  final  decree  of  the  Probate  Court.  From  an  order  denying  her 
motion  for  a  new  trial,  Ella  Whitby  appealed.    Affirmed. 

Taylor,  C,  George  Motz  and  the  mother  of  appellant  were  married 
in  1883  and  lived  together  as  husband  and  wife  until  1891  when  they 
separated.  Appellant  was  born  a  few  months  after  the  separation  and 
is  their  only  child.  Subsequently  Motz  obtained  a  divorce  on  the 
ground  of  desertion,  and  on  September  14,  1897,  married  the  respond- 
ent Mary  Motz,  with  whom  he  lived  until  his  death  on  August  9,  191 1, 


7i8  Casks  on  Evidence 

He  left  a  will  by  which  he  gave  the  respondent  all  his  property  ex- 
cept one  horse.  Appellant  was  not  mentioned  or  referred  to  in  the 
will. 

From  the  parol  testimony  offered  by  respondent  and  received  in  evi- 
dence by  the  court,  the  court  found  as  a  fact  "that  said  omission  to 
provide  for  appellant  in  said  last  will  and  testament,  or  to  mention 
her  name  therein,  was  intentional  and  not  occasioned  by  accident  or 
mistake." 

Appellant  insists :  ( i )  That  such  parol  testimony  was  not  admis- 
sible and  that  the  question  as  to  whether  she  was  intentionally  omitted 
must  be  determined  solely  from  the  will  itself;  (2)  that  the  evidence 
is  not  sufficient  to  sustain  the  above  finding,  even  if  such  parol  testi- 
mony were  admissible. 

In  the  revised  laws  of  1905  our  statutes  were  changed  so  as  to  read 
as  follows : 

"If  any  child  of  a  testator,  born  after  the  death  of  such  testator, 
has  no  provision  made  for  him  by  his  father  in  his  will  or  otherwise, 
he  shall  take  the  same  share  of  his  father's  estate  that  he  would  have 
taken  if  the  father  had  died  intestate."  Section  3668,  R.  L.  1905  (Sec- 
tion 7259,  G.  S.  1913). 

The  second  section  is  so  changed  that  the  right  of  a  pretermitted 
child  to  inherit  is  absolute,  "unless  it  appears  that  such  omission  was 
intentional  and  not  occasioned  by  accident  or  mistake."  Under  the 
original  statute  the  burden  was  upon  the  omitted  child  to  show  that 
such  omission  was  unintentional.  Under  the  present  statute,  when 
it  appears  that  a  child  has  been  omitted,  the  burden  is  upon  those  who 
claim  that  such  omission  was  intentional,  to  establish  that  fact.  The 
statute  contains  no  restriction  as  to  the  manner  in  which  such  fact 
may  be  shown.  Appellant,  however,  insists  that  the  statute  should  be 
construed  as  if  it  provided  that  an  omitted  child  should  inherit,  "un- 
less it  appears  from  the  ivill  that  such  omission  was  intentional."  In 
other  words  that  the  court,  in  effect,  should  interpolate  the  words 
italicised.  It  is  difficult  and  frequently  impossible  to  prove  the  inten- 
tion of  the  testator.  The  legislature  has  shifted  the  burden  of  doing 
this  from  the  child  to  the  adverse  party.  If  it  had  intended  to  go 
further  and  to  limit  the  evidence  upon  the  question  to  the  will  itself, 
it  would,  doubtless,  have  used  appropriate  language  to  express  that 
intention. 

Other  courts,  in  construing  statutes  substantially  the  same  as  our 
present  statute  hold  that  parol  evidence  is  admissible  for  the  purpose 
of  showing  that  such  child  was  intentionally  omitted.    Coulan  v.  DouU, 


Thd  Parol  Evidence  Rule  719 

133  U.  S.  216;  Wilson  V.  Fosket,  6  Mete.  (Mass.  4),  39  Am.  Dec,  736; 
Converse  v.  Wales,  4  Allen,  512;  Ramsdill  v.- Wentworth,  loi  Mass. 
125;  Lorieux  v.  Keller,  5  Iowa,  196,  68  Am.  Dec.  696;  Whittemore  v. 
Russell,  80  Me.  297 ;  Re  Atwood's  Estate,  14  Utah,  i ;  Schulz  v.  Schulz, 
19  N.  D.  688. 

Order  appealed  from  is  affirmed. 


CRAGIN  V.  CARLETON. 
21  Me.  4p2.     (1842) 


Assumpsit  on  a  note,  dated  February  20,  1838,  in  favor  of  the 
plaintiffs  against  James  H.  Carleton,  Robert  R.  Haskins  and  Romu- 
lus Haskins,  alleged  to  have  then  been  copartners,  doing  business  in 
the  name  of  J.  H.  Carleton  &  Co.  Carleton  and  Romulus  Haskins 
were  defaulted;  and  the  only  question  was,  whether  Robert  R.  Has- 
kins was  liable  as  a  partner. 

The  note,  which  was  admitted  to  have  been  signed  by  Carleton  in 
the  partnership  name,  was  read  to  the  jury.  To  prove  that  Robert 
R.  Haskins  was  a  partner,  after  the  introduction  of  other  evidence, 
the  plaintiffs  produced  and  offered  in  evidence  a  copy  of  a  judg- 
ment against  all  the  defendants,  recovered  by  default,  at  the  return 
term  of  the  writ,  in  the  Court  of  Common  Pleas  for  the  county  of 
Cumberland,  March  Term,  1838,  in  favor  of  the  Oriental  Bank,  on 
a  note  given  April  14,  1836,  and  signed  by  J.  H.  Carleton  &  Co. 
To  the  admission  of  this  judgment  in  evidence  the  defendant  ob- 
jected. Tenney,  J.,  presiding  at  the  trial,  permitted  it  to  be  read 
to  the  jury,  as  evidence  of  the  admission  of  the  defendant,  R.  R. 
Haskins,  that  he  was  a  member  of  that  firm.  The  counsel  for  the 
defendant  then  proposed  to  prove,  that  after  the  commencement  of 
that  suit,  and  before  the  default,  the  defendant  consulted  counsel  in 
reference  to  a  defence  thereto,  stating  to  the  counsel  that  he  was 
never  a  member  of  the  firm  of  J.  H.  Carleton  &  Co.  and  that  he  had 
never  in  any  way  authorized  the  use  of  his  name  by  that  firm;  that 
upon  inquiry  by  his  counsel,  whether  he  considered  the  firm  of  Carle- 
ton &  Co.  solvent,  he  stated  that  he  thought  it  was;  and  that  upon 
the  suggestion  by  his  counsel,  that  the  amount  of  the  demand  sued 
was  small,  and  that  the  expense  of  litigating  it  at  such  distance  would 
be  considerable,  whether  it  would  be  best  to  resist  it,  he  concluded. 


720  Cases  on  Evidence 

and  so  instructed  his  counsel,  to  let  the  action  be  defaulted.  The 
plaintiffs  objected  to  the  admission  of  this  evidence,  and  it  was  ex- 
cluded by  the  Judge. 

The  defendant  then  consented  to  be  defaulted,  with  leave  to  move 
to  have  the  default  taken  off,  if,  in  the  opinion  of  the  court,  the 
judgment  was  not  admissible  in  evidence,  or  if  the  evidence  offered 
by  the  defendant,  and  rejected  was  admissible. 

Whitman,  C.  J.  The  only  questions  raised  by  the  defendants 
are,  whether  a  judgment  entered  against  them,  as  copartners  upon 
default,  in  a  suit  between  them  and  persons  other  than  the  plain- 
tiffs, was  admissible  in  this  case  to  prove  their  copartnership;  and,  if 
it  was,  whether  the  reasons  given  by  one  of  the  defendants,  who 
denies  that  he  was  a  partner,  disclosed'  by  him  to  his  counsel  for 
suffering  a  default  to  be  entered  in  that  suit  were  admissible  to- 
gether with  the  advice  of  his  counsel  thereon,  by  way  of  showing 
that  the  default  should  not  be  taken  to  be  a  concession  that  a  part- 
nership existed  between  them.  As  to  the  first  question,  we  cannot 
regard  it  otherwise  than  as  settled  by  the  case  of  Ellis  v.  Jameson, 
17  Me.  R.  235,  that  such  judgment  is  admissible.  And,  as  to  the 
other,  we  are  not  aware  of  any  precedent  in  support  of  such  a  prop- 
osition; but,  on  the  contrary,  the  rules  of  evidence  seem  to  be  dia- 
metrically opposed  to  it.  The  effect  of  judgments  is  never  to  be 
explained  by  parol ;  and  surely  not  by  the  declarations  of  the  parties 
to  them,  in  opposition  to  what  is  obviously  imported  by  them. 

Judgment  on  the  default. 


DADY  V.  O'ROURKE. 
1^2  N.  Y.  447.     (1902) 


Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  June  3,  1901,  affirm- 
ing a  judgment  in  favor  of  plaintiff  entered  upon  a  decision  of  the 
court  on  trial  at  Special  Term. 

Parker,  Ch.  J,  It  is  urged  on  the  part  of  plaintiff  that  his  part 
of  the  contract  would  have  been  performed  by  delivering  to  the  trust 
company  all  his  stock,  whether  the  number  of  shares  was  687  or  a 
much  less  number,  so  that  if  the  amount  actually  owned  and  held 
by  him  had  been  one-fifth  instead  of  three-fifths,  the  turning  over 


The  Parol  Evidence  Rule  721 

of  that  amount  to  the  trust  company  would  have  constituted  per- 
formance on  his  part.  But  we  do  not  so  understand  the  contract. 
As  we  read  it,  he  not  only  agreed  to  turn  over  all  his  stock,  but  also 
agreed  that  the  stock  holdings  thus  to  be  turned  over  amounted  to 
three-fifths  of  the  entire  capital. 

One  of  the  rules  to  be  applied  in  the  construction  of  contracts  is 
that  they  shall  be  construed  so  that  all  parts  may  stand  together  if 
they  are  capable  of  such  an  interpretation.  A  covenant  in  large  and 
general  terms  may  be  restrained  and  narrowed  where  the  intent  to 
restrain  and  narrow  or  qualify  is  apparent  from  other  parts  of  the 
same  instrument.  Thus  in  Holmes  v.  Hubbard  (60  N.  Y,  183),  upon 
the  dissolution  of  a  partnership  between  D.  &  H.,  H.  purchased  D's 
interest  and  gave  him  a  bond  signed  by  himself  and  another  con- 
ditioned to  indemnify  D  "from  all  and  singular  the  debts  and  lia- 
bilities" of  the  firm.  At  the  end  of  the  formal  part  of  the  bond 
were  added  the  words  "Liabilities  as  per  schedule  of  indebtedness 
hereto  attached."  This  court  held  that  the  general  terms  of  the 
condition  were  limited  and  qualified  by  the  added  clause;  and  that 
the  obligers  were  not  liable  for  a  copartnership  debt  not  mentioned 
in  the  schedule.    That  case  is  in  point  here  and  should  be  controlling. 

Still  another  rule  of  construction  is  that  the  intention  of  the  par- 
ties is  to  be  sought  in  the  words  and  language  employed,  which  are 
to  be  read  and  understood  according  to  their  natural  and  obvious 
import.     (Schoonmaker  v.  Hoyt,  148  N.  Y.  425.) 

Applying  these  rules  to  the  contract  before  us  the  conclusion  must 
be  reached,  we  think,  that  plaintiff  agreed  to  sell  his  holdings  in  the 
ice  company,  and  agreed  that  they  amounted  to  three-fifths  of  the 
entire  capital. 

Now  it  must  be  borne  in  mind  that  this  is  not  an  action  to  reform 
a  contract  so  that  it  shall  voice  the  agreement  the  parties  intended 
to  make.  On  the  contrary,  it  is  based  on  the  contract  as  it  was  writ- 
ten with  the  claim  of  full  performance  on  the  part  of  the  plaintiff 
and,  therefore,  cannot  be  maintained  by  evidence  that  the  contract 
was  intended  to  be  a  different  one,  for  it  is  the  general  rule  that 
when  an  agreement  is  reduced  to  writing,  it,  as  between  the  parties, 
merges  and  overcomes  all  prior  or  contemporaneous  negotiations  upon 
the  subject,  and  that  oral  evidence  is  not  admissible  to  vary,  explain 
or  contradict  its  terms,  for  the  writing  is  conclusively  presumed  to 
contain  the  whole  engagement  of  the  parties.  (Stowell  v.  Greenwich 
Ins.  Co.,  163  N.  Y.  298.)  There  are  certain  exceptions  to  the  rule 
referred  to  in  that  case,  but  as  this  case  is  not  within  any  of  them 

I  .  y 

I 

I 


722  Cases  on  Evidence 

they  need  not  be  referred  to.  Other  authorities  to  the  same  effect 
are  Mars  v.  McNair  (99  N.  Y.  174);  Sanders  v.  Cooper  (115  N. 
Y.  279);  Walton  v.  Agricultural  Ins,  Co.  (116  N.  Y.  317);  United 
Press  V.  N.  Y.  Press  Co.  (164  N.  Y.  406). 

The  evidence  was  apparently  admitted  upon  the  view  that  the  con- 
tract was  ambiguous  and  hence  that  the  proof  of  the  facts  and  sur- 
rounding circumstances  was  admissible  in  order  to  aid  the  court  in 
arriving  at  the  intention  of  the  parties,  but  as  we  read  it  it  is  clear 
and  unambiguous,  and,  therefore,  to  be  construed  according  to  its 
language. 

Now,  the  evidence  admitted  against  the  objection  of  the  defend- 
ant, some  of  which  we  have  quoted,  was  prejudicial  to  defendant, 
tending  to  show  that  it  was  the  intent  of  the  parties  that  plaintiff 
should  sell  only  his  interest  in  the  stock  of  the  company,  whatever 
it  might  be,  and  as  the  court  found  that  plaintiffs  had  fully  per- 
formed his  part  of  the  agreement  it  must,  in  view  of  our  construc- 
tion of  the  contract,  have  been  based  upon  the  evidence  adduced  out- 
side of  the  contract,  tending  to  show  that  plaintiff  only  intended  to 
sell  and  defendant  to  buy  such  of  the  stock  of  the  company  as  was 
held  and  owned  by  plaintiff. 

It  follows  that  the  judgment  should  be  reversed,  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

Gray,  O'Brien,  Bartlett,  Haight  and  Vann,  JJ.,  concur;  Mar- 
tin, J.,  not  voting. 

Judgment  reversed,  etc. 


STATE  V.  LOVAN. 
245  Mo.  516.     (1912) 


Ferriss,  J.  Defendant  was  convicted  in  the  Criminal  Court  of 
Jackson  County  on  an  information  charging  him  with  the  crime  of 
obtaining  property  by  false  pretenses,  and  sentenced  to  two  years  in 
the  penitentiary.  The  information  charges  that  the  defendant  with 
intent  to  defraud  one  George  F.  Hannay,  did  falsely,  etc.,  repre- 
sent to  said  Hannay  that  he,  the  defendant,  and  the  Ernest  Lovan 
Investment  Company  owned  in  fee  simple,  and  free  and  clear  of  all 
inaimbrances  several  parcels  of  real  esttate,  described  in   -detail   in 


The  Parol  Evidence  Rule  723 

the  information,  and  said  Hannay  was  the  owner  of  certain  capital 
in  certain  corporations,  set  out  in  detail. 

The  testimony  for  the  State  developed  the  -fact  that  at  the  time 
when  the  alleged  representations  were  made  by  defendant  concerning 
the  Morgan  county  land  the  same  was  incumbered  by  two  deeds  of 
trust  of  several  hundred  dollars  each.  Defendant  testified  that  he 
told  Hannay  of  the  existence  of  these  two  incumbrances  and  told 
him  further,  that  he  had  an  arrangement  with  the  holder  of  them, 
Mr.  J.  J.  Swofford,  by  which  he  could  get  them  at  any  time  and 
clear  them.  Mr.  Swofford  testified  that  he  held  the  two  deeds  of 
trust  on  the  Morgan  county  land,  and  that  they  had  been  put  up  with 
him  by  defendant  as  collateral  for  a  loan.  Defendant's  counsel  asked 
Swofford,  in  substance,  whether  he  had  a  conversation  with  defend- 
ant with  reference  to  surrendering  these  notes.  Objection  by  the 
State  was  sustained.  Defendant  urges  that  this  ruling  was  error 
materially  affecting  his  rights.  The  State  contends  that  defendant 
has  no  standing  to  urge  this  assignment,  because  he  made  no  formal 
offer  to  show  such  arrangement  to  take  up  the  notes  as  defendant 
claimed,  and  further,  that,  even  if  there  had  been  such  an  arrange- 
ment, it  would  be  immaterial.  The  defendant's  counsel  sufficiently 
indicated  their  purpose,  and  the  court  so  understood  it.  The  ruling 
of  the  court  was  put  upon  the  ground  that  such  arrangement  was 
immaterial  inasmuch  as  it  had  not  been  carried  out.  We  think  the 
objection  to  this  line  of  inquiry  should  have  been  overruled.  If  an 
arrangement  existed  by  which  defendant  could  at  any  time  clear 
the  lien  of  these  deeds  of  trust,  that  fact  would  be  material  upon 
the  question  of  intent.  Defendant  had  testified,  without  objection  by 
the  State,  that  he  had  told  Hannay  that  he  had  an  arrangement  with. 
Swofford  by  which  he  could  at  any  time  get  these  notes  and  deeds 
of  trust.  We  think  testimony  upon  this  point  from  Swofford  would 
be  competent,  in  corroboration  of  the  testimony  of  defendant.  If 
defendant  pledged  these  mortgages  to  Swofford,  it  is  fair  to  assume 
that  he  owned  them.  Suppose  he  had  not  pledged  them,  but  was 
holding  them  as  owner — it  is  conceded  that  he  had  title  to  the  land — 
and  had  said,  under  such  conditions,  that  the  land  was  clear  of  in- 
cumbrances, it  would  hardly  be  claimed  that  such  facts  could  not 
be  shown  upon  the  question  of  criminal  intent.  Yet,  if  he  had  an 
agreement  by  which  he  could  certainly  clear  the  land  of  these  mort- 
gages, although  they  were  hypothecated,  and  intended  so  to  do,  the 
effect  would  be  practically  the  same  so  far  as  the  facts  related  to  a 


724  Cas^s  on  Evidence 

criminal  intent.  The  ruling  of  the  court  was  prejudicial  error,  and 
must  result  in  a  reversal  of  the  judgment. 

It  is  finally  urged  that  the  contract  read  in  evidence  does  not  sus- 
tain the  charge  in  the  information.  It  was  argued  that  the  written 
contract  does  no  more  than  bind  the  defendant  to  guaranty  of  title, 
and  does  not  amount  to  an  assertion  of  present  clear  title.  If  the 
case  depended  solely  upon  the  written  contract,  this  point  might  be 
worthy  of  serious  consideration  but  the  prosecuting  witness  swears 
that  the  defendant  assured  him  verbally,  before  the  written  contract 
was  drawn,  that  the  land  was  unincumbered. 

The  rule  applied  in  civil  cases  in  actions  upon  written  contracts, 
namely  that  prior  conversations  and  oral  agreements  are  merged  in 
the  writing  can  have  no  application  here.  Fraud  is  not  merged  in 
a  written  contract.  [Gooch  v.  Conner,  8  Mo.  391.]  There  is  no 
question  here  as  to  the  contract  between  the  parties  or  that  the  writ- 
ing does  not  truly  state  it.  Where  the  written  contract  itself  was 
brought  about  by  fraud,  proof  of  that  fraud  may  be  in  parol. 

When  the  parol  testimony  was  offered,  the  defendant  did  not  ob- 
ject, presumably  because  counsel  saw  no  grounds  for  objection.  In 
our  judgment,  none  existed. 

Because  of  the  error  committed  in  ruling  out  the  testimony  of  wit- 
ness Swofford,  the  judgment  is  reversed  and  the  cause  remanded. 

Brown,  P.  J.,  and  Kennish,  J.,  concur.  ^ 


SHERWOOD  V.  SHERWOOD. 

45  ^w.  357-    (1878) 

Lyon,  J.  This  is  substantially  an  action  to  remove  a  cloud  from 
the  plaintiff's  title  to  lot  10  in  block  20  in  the  city  of  Oshkosh,  which, 
the  plaintiff  alleges  in  her  complaint  was  devised  to  her  by  her  son, 
the  late  Daniel  O.  Sherwood,  in  and  by  his  last  will  and  testament, 
which  since  his  death  has  been  duly  admitted  to  probate.  The  cloud 
is  alleged  to  have  been  produced  by  the  fact  that  in  said  will  the  lot 
is  misdescribed  as  lot  9  in  block  20.  It  is  further  alleged  that  the 
defendant  claims  to  be  the  owner  of  an  undivided  one-half  of  lot 
10;  and  facts  are  stated,  showing  that  his  claim  is  valid,  if  the  lot 
is  intestate  estate.  The  plaintiff  prays  that  the  cloud  may  be  re- 
moved by  correcting  the  alleged  misdescription  in  the  will,  and  by 


The  Parol  Evidence  Rule  725 

the  judgment  of  the  court  that  lot  10  is  therein  devised  to  the  plain- 
tiff notwithstanding  such  misdescription.  Either  of  these  modes,  if 
adopted,  will  operate  to  quiet  and  confirm  the  plaintiff's  title  to 
lot  ID. 

An  extended  examination  of  the  cases  and  authorities  bearing  on 
the  question,  not  only  those  cited  by  both  of  the  learned  counsel, 
but  many  others  not  cited,  has  satisfied  us  that  it  is  not  a  proper 
exercise  of  the  powers  of  a  court  of  equity  to  reform  a  will  by  add- 
ing provisions  thereto  to  make  the  will  accord  with  the  real  inteu 
tions  of  the  testator. 

The  remaining  question  is,  whether  the  will  admits  of  the  con- 
struction that  the  testator  therein  devised  lot  10  to  the  plaintiff.  One 
of  the  rules  by  which  this  question  must  be  determined  is,  that  evi- 
dence of  the  intention  of  the  testator,  extrinsic  to  the  will  itself,  is  not 
admissible  for  the  purpose  of  explaining,  construing  or  adding  to 
the  terms  of  a  will;  but  such  intention  must  be' spelled  out  from  the 
words  of  the  will  itself,  read  in  the  light  of  the  circumstances  sur- 
rounding the  testator  when  he  made  it.  In  cases  where  there  are 
inconsistent  provisions  in  the  will,  evidence  of  such  circumstances  is 
always  admissible. 

The  above  rules  excluding  extrinsic  evidence  of  the  intention  of 
the  testator  has  been  appHed  in  a  large  number  of  cases  in  which 
such  evidence  has  been  offered  to  vary  or  contradict  wills,  to  supply 
omissions  or  correct  mistakes  therein,  or  to  explain  patent  ambig- 
uities. Wigram  lays  down  the  rule  as  follows:  "If  a  testator's 
words,  aided  by  the  light  derived  from  the  circumstances  with  ref- 
erence to  which  they  were  used,  do  not  express  the  intention  ascribed 
to  him,  evidence  to  prove  the  sense  in  which  he  intended  to  use  them 
is,  as  a  general  proposition,  inadmissible ;  in  other  words,  the  judg- 
ment of  a  court  in  expounding  a  will  must  be  simply  declaratory  of 
what  is  in  the  will."  p.  179.  Numerous  English  cases  illustrating 
the  application  of  the  rule  are  cited  in  the  note  2,  p.  182  of  the 
treatise  above  cited. 

In  Morgan  v.  Burrows,  ante,  p.  211,  such  evidence  was  held  ad- 
missible to  explain  a  latent  ambiguity ;  and  the  distinction  is  there 
considered  between  such  a  case  and  those  cases  which  are  within  the 
rule.  Many  American  cases  in  which  the  rule  has  been  applied,  will 
be  found  cited  in  the  brief  of  counsel  for  the  appellant  in  that  case. 

We  are  now  to  determine  whether  there  is  any  provision  or  clause 
in  the  will  under  consideration,  from  which,  when  considered  in  the 
light  of  surrounding  circumstances,  the  court  can  say  that  it  con- 


726  Cases  ON  Evidence 

tains  a  devise  of  lot  10  to  the  plaintiff.  Inasmuch  as  the  question 
arises  on  demurrer  to  the  complaint,  we  have  no  knowledge  of  the 
contents  of  the  will  beyond  what  is  stated  in  the  complaint.  It  is 
averred  therein  that,  by  mistake,  lot  9  is  the  lot  described  in  the  will 
instead  of  lot  10,  and  that  the  testator  "made  no  other  mention  or 
description  of  lot  10,  or  of  any  lot  of  land  in  said  block  20  except 
as  herein  stated."  Thus  it  is  substantially  alleged  that  the  only  desig- 
nation or  description  in  the  will  of  the  lot  devised  to  the  plaintiff  is 
"lot  9."  Hence  there  is  nothing  in  the  will  upon  which  to  predi- 
cate a  construction  that  lot  10  was  therein  devised  to  her. 

It  might  be  otherwise  had  the  testator  inserted  in  his  will  any 
other  description  or  identification  of  the  lot  which  he  intended  to 
devise  to  the  plaintiff.  For  instance,  had  he  devised  to  her  "lot  9  in 
block  20  occupied  by  A;"  or,  "which  I  purchased  of  B;"  or  even 
"my  lot  9  in  block  20,"  and  had  it  appeared  that  lot  10  alone  was 
occupied  by  A,  or  that  the  testator  purchased  lot  10  alone  of  B,  or 
that  lot  10  was  the  only  lot  owned  by  the  testator  in  block  20,  in 
either  case  extrinsic  evidence  would  be  admissible  to  show  the  fact; 
and  if  established,  the  court  would  be  justified  in  construing  the  will 
as  containing  a  devise  to  the  plaintiff  of  lot  10.  This  does  not  con- 
travene the  rule  which  rejects  extrinsic  evidence  of  the  intention  of 
the  testator  when  offered  to  vary  or  add  to  a  will ;  for  in  either  of  the 
cases  above  supposed,  the  will  itself  contains  two  inconsistent  de- 
scriptions of  the  lot  devised,  the  one  true  and  the  other  false;  and 
the  court  would  merely  resort  to  extrinsic  evidence  to  ascertain  which 
was  the  true  description,  and  would  construe  the  will  accordingly. 
This  is  but  an  application  of  the  familiar  maxim,  falsa  demonstratio 
non  nocet  sanctioned  by  all  of  the  authorities.  Nearly  all  of  the  cases 
cited  by  the  learned  counsel  for  the  plaintiff  sustain  these  views. 

Our  conclusion  upon  the  whole  case  is,  that  the  complaint  in  its 
present  form  does  not  state  a  cause  of  action,  and  that  the  demurrer 
thereto  should  have  been  sustained. 


The  Parol  Evidence  Rule  ^2'J 

PROVIDENT  SAV.  LIFE  ASS'N  OF  N.  Y.  v.  SHEARER. 
i^i  Ky.  2^8.     (1912) 

Carroll,  J.  In  March,  1896,  the  appellee,  Shearer,  procured  from 
the  appellant  company  a  ten  year  term  policy  for  $5,000,  in  which 
the  company  obligated  itself  to  pay  the  amount  of  the  insurance 
only  in  the  event  the  insured  died  before  the  expiration  of  the  ten 
years.  In  October  1905,  a  few  months  before  this  policy  expired, 
the  appellant  company  proposed  to  issue  to  Shearer  a  new  form  of 
insurance  for  $5,000  under  the  twenty  payment  life  plan,  the  policy 
to  be  dated  back  to  March,  1896,  in  order  that  Shearer  might  have 
the  benefit  of  the  premium  rate  based  on  his  age  in  1896,  in  place 
of  the  higher  rate  he  would  have  to  pay  if  his  policy  was  dated  in 
1905.  As  a  result  of  conference  between  Sprout,  the  agent  of  ap- 
pellant, and  Shearer,  the  latter,  on  October  26,  1905,  made  a  writ- 
ten application  to  surrender  his  old  policy  and  take  out  the  new 
twenty  payment  life,  which  was  to  be  dated  March  2y,  1896,  to  cor- 
respond with  the  date  of  the  old  policy.  Soon  after  this  the  appli- 
cation was  accepted  and  the  new  policy  issued.  As  a  part  of  the 
plan  by  which  the  old  policy  was  surrendered  and  the  new  one  issued. 
Shearer  executed  his  note  to  the  company  for  $1,826,  this  amount 
representing  the  reserve  against  the  policy,  which  under  the  law  the 
company  was  required  to  have  either  in  money  or  in  a  secured  note. 

On  March  22nd  Shearer  paid  to  the  company  $71.90  in  cash  and 
executed  his  note  for  $215.70,  the  remainder  of  the  premium  due 
on  March  27,  1910.  This  note  was  due  on  June  27,  1910,  and  on 
June  25th  Shearer  advised  the  company  that  he  had  concluded  not 
to  carry  the  insurance  any  longer,  and  did  not  pay  the  note.  In  Jan- 
uary, 191 1,  he  brought  suit  against  the  company  to  recover  from  it 
$1,222.30,  the  full  amount  of  the  premiums  he  had  paid  each  year 
from  1906  to  1910  inclusive,  with  interest  thereon  from  the  date  of 
each  payment,  and  in  addition  thereto,  $750  which  he  alleged  was 
the  value  to  him  of  the  old  policy  which  he  surrendered  to  the  com- 
pany. His  action  was  based  on  the  ground  that  the  company,  by  false 
and  fraudulent  representations  induced  him  to  surrender  his  old 
policy  and  accept  in  place  of  it  the  new  one. 

To  this  suit  the  company  made  a  number  of  defenses,  and  upon  a 
trial  before  a  jury  a  verdict  was  returned  in  favor  of  Shearer  for  the 
premiums  paid  by  him  in  1906,  1907,  1908,  1909,  and  1910,  with 
interest  on  each  from  the  date  of  its  payment.     A  reversal  is  asked 


728  Cases  on  Evidence 

on  several  grounds  but  we  will  only  notice  two:  one,  that  the  request 
of  appellant  for  a  peremptory  instruction  should  have  been  granted, 
and  the  other,  that  the  verdict  is  flagrantly  against  the  evidence. 

The  rule  is  elementary  that  the  terms  or  conditions  of  a  written 
contract  in  the  absence  of  fraud  or  mutual  mistake  in  its  execution, 
cannot  be  varied,  or  contradicted,  or  added  to  or  subtracted  from  by 
prior  or  contemporaneous,  parol  agreements  or  arrangements  be- 
tween the  parties  to  the  written  memorial:  Farmers  Bank  of  Wick- 
liffe  V.  Wickliffe,  131  Ky.  787;  Anthony  v.  Hudson,  131  Ky.  185; 
Sayler  v.  Sayler,  141  Ky,  648;  Sackett  v.  Maggard,  142  Ky.  500. 

But  the  broadest  application  of  this  rule  does  not  deny  to  a  party 
the  right  to  attack,  in  its  entirety,  with  parol  evidence,  a  contract 
for  fraud  or  want  of  consideration.  Any  written  contract,  without 
reference  to  what  form  it  may  be  put  in,  and  without  regard  to  the 
circumstances  attending  its  execution,  can  be  assailed,  as  a  whole 
with  parol  evidence  for  fraud  or  for  want  of  consideration.  If  this 
were  not  true,  a  written  contract,  however  fraudulent  or  destitute 
of  consideration,  could  be  enforced,  and  the  party  who  signed  a 
written  obligation  would  be  helpless  to  protect  or  defend  himself 
against  its  enforcement,  although  he  might  be  able  to  show,  by  the 
most  convincing  parol  evidence  that  it  was  procured  by  fraud  or  that 
there  was  no  consideration  for  its  execution.  The  exception  that 
we  have  stated  to  the  general  rule  rejecting  parol  evidence,  to  vary 
a  written  contract,  is  too  well  settled  to  need  more  than  the  mere 
citation  of  authorities.  Stone  v.  Ramsey,  4  T.  B.  Mon.  236;  Triggle 
v.  Oldham,  5  J.  J.  Marshall,  137;  Doyle  v.  Offutt,  135-  Ky.  296; 
Cummings  v.  Cass,  52  N.  J.  L.  77;  Page  on  Contracts,  section  1207; 
Greenleaf  on  Evidence,  section  284;  Lavalleur  v.  Hahn,  152  la.  649. 


HAYCOCK  V.  JOHNSTON. 
81  Minn.  49.     (1900) 

Brown,  J.  This  action  is  one  to  recover  an  amount  claimed  to  be 
due  as  and  for  rent  of  a  dwelling  house  leased  by  plaintiff  to  de- 
fendant. The  court  below  directed  a  verdict  for  plaintiff,  and  de- 
fendant appeals  from  an  order  denying  a  new  trial. 

The  facts  are  as  follows:  On  April  6,  1899,  plaintiff  was,  and 
for  some  time  prior  thereto  had  been,  the  owner  of  a  certain  dwell- 


The  Paroi,  Evidence  Rule  729 

ing  house  situated  upon  land  owned  by  him  in  the  city  of  St.  Paul, 
and  on  that  day  leased  the  same  to  defendant  for  the  term  of  five 
years.  Defendant  took  possession  of  the  property  and  continued 
to  occupy  it  until  September,  1899,  when  he  vacated  the  same  for 
the  reasons  to  be  presently  stated.  He  failed  to  pay  the  rent  for 
the  months  of  July,  August,  September,  October,  and  November,  and 
this  action  was  brought  to  recover  the  same.  The  tract  of  land  on 
which  the  dwelling  stands  extends  a  distance  of  ninety  feet  on  Fair- 
mount  avenue,  and  the  dwelling  and  barn,  also  included  in  the  lease, 
stand  on  the  westerly  part  of  the  tract.  Immediately  east  of  the 
house  a  driveway  extends  from  the  avenue  to  the  rear  of  the  prem- 
ises where  the  barn  is  located.  All  that  portion  of  the  tract  of  land 
east  of  the  driveway  was  vacant  and  unoccupied  at  the  time  the 
lease  was  made.  Before  the  execution  of  the  lease,  plaintiff  in- 
formed defendant  that  he  intended  to  erect  another  dwelling  upon 
the  unoccupied  and  vacant  portion  of  the  land;  and  in  June  follow- 
ing he  caused  the  same  to  be  erected,  placing  the  same  within  four- 
teen feet  of  the  one  leased  to  defendant.  It  is  the  contention  of  de- 
fendant that  plaintiff  specially  agreed  not  to  construct  or  erect  the 
new  building  nearer  than  twenty-four  feet  to  the  old  one;  that  he 
violated  this  agreement,  erected  the  building  within  fourteen  feet, 
and  thereby  evicted  defendant  from  a  part  of  the  leased  premises, 
which  violation  of  said  agreement  relieved  defendant  from  liability 
for  the  payment  of  rent.  He  also  contends  that  plaintiff  never  in- 
tended to  carry  out  such  agreement,  but  fraudulently  represented  that 
he  would  do  so,  and  thereby  induced  defendant  to  lease  the  prem- 
ises.   For  this  alleged  fraud,  he  asks  for  a  cancellation  of  the  lease. 

The  defendant's  whole  defense  is  embodied  in  this  alleged  special 
or  collateral  agreement  as  to  the  erection  of  the  new  building.  The 
theory  of  his  counsel  that  the  lease  is  indefinite  and  uncertain  as  to 
the  extent  of  the  tract  of  land  covered  and  intended  to  be  covered 
thereby  is  so  clearly  erroneous  as  to  require  no  extended  notice.  The 
description  of  the  leased  property,  as  contained  in  the  writing,  is  as 
follows : 

"The  real  property  situate  in  the  city  of  St.  Paul,  county  of  Ram- 
sey, and  state  of  Minnesota,  and  described  as  follows;  that  is  to  say: 
Premises  known  as  No.  771  Fairmount  Avenue,  together  with  all 
the  appurtenances  thereof.  This  lease  to  cover  the  property  that  the 
house  and  barn  stand  on  only." 

This  description  is  unambiguous  and  perfectly  definite  and  clear. 
The  property  leased  includes,   and  was   intended  by  the  parties  to 


730  Cases  on  Evidence 

include,  that  portion  of  the  tract  of  land  in  question  upon  which  the 
house  and  barn  stand,  and  that  portion  only.  And  the  court  below 
was  right  in  excluding  the  evidence  offered  by  defendant  for  the 
purpose  of  enlarging  and  extending  the  description.  It  follows  from 
this  that  defendant's  further  contention  to  the  effect  that  he  was 
entitled  to  twenty-four  feet  of  land  on  the  east  of  the  house,  for  use 
in  connection  therewith,  is  without  foundation.  It  is  not  so  con- 
ditioned in  the  lease.  And,  as  the  written  contract  cannot  be  en- 
larged by  parol,  his  theory  of  eviction  falls. 

Neither  is  there  any  merit  in  the  claim  that  the  lease  was  obtained 
by  fraud;  that  by  reason  of  fraudulent  representations  on  the  part 
of  plaintiff  at  and  before  the  execution  of  the  lease,  with  respect  to 
the  location  of  the  new  building,  defendant  is  entitled  to  a  cancel- 
lation of  the  lease.  All  agreements  and  promises  made  and  entered 
into  by  either  party  preliminary  to  and  simultaneously  with  the  exe* 
cution  of  the  lease,  and  with  reference  thereto,  are  conclusively  pre- 
sumed to  be  embodied  and  contained  in  the  written  contract.  In  no 
proper  view  of  the  law  can  we  construe  the  alleged  collateral  agree- 
ment with  reference  to  the  location  of  the  new  building  to  be  or  con- 
stituted a  part  or  portion  of  the  written  lease.  It  should  have  been 
incorporated  in  the  writing.  As  it  was  not,  defendant  is  in  no  posi- 
tion to  say  that  the  contract  as  orally  made  included  the  collateral 
agreement,  and  that  by  reason  of  plaintiff's  violation  thereof  he  has 
been  defrauded. 

Order  affirmed. 


CALIFORNIA  TITLE  ETC.  CO.  v.  PAULY. 
Ill  Col.  J2J.     (i8p6) 

Vanclife,  C.  Action  to  foreclose  a  mortgage  executed  by  the 
San  Diego  Cable  Railway  Company  (a  corporation),  to  the  plain- 
tiff, in  trust,  to  secure  the  payment  of  a  series  of  bonds  executed  by 
the  mortgagor. 

The  plaintiff  prevailed  in  the  lower  court ;  and  the  defendant,  Pauly, 
appeals  from  the  judgment  of  foreclosure,  and  from  an  order  de- 
nying his  motion  for  a  new  trial. 

The  appellant  contends  that  the  court  erred  in  finding  that  a  cer- 
tain piece  of  land,  known  as  the  "Pavilion  Grounds,"  was  embraced 


The  Parol  Evidence  Rule  731 

in  the  description  of  the  mortgaged  property,  and  in  ordering  a  sale 
of  those  "grounds"  as  a  part  of  the  property  mortgaged;  and  this 
is  the  principal  point  in  controversy  on  this  appeal. 

Appellant  contends  that  "the  only  ground  on  which  the  court  holds 
the  'Pavilion  Grounds'  to  be  included  in  the  mortgage  is  that  said 
grounds  are  an  appurtenance  of  the  line  of  railway,"  and  insists 
that  whether  or  not  those  grounds  are  appurtenant  to  the  railway 
is  the  only  material  question  involved;  and  then  proceeds  to  con- 
trovert the  proposition  that  they  are  so,  on  the  ground  that  land 
cannot  be  appurtenant  to  land,  etc. 

Counsel  for  appellant  say:  "The  court  erred  in  admitting  parol 
evidence  showing  the  general  course  and  termini  of  the  cable  road, 
the  location  of  the  'Pavilion  Grounds,'  and  the  amount  of  travel 
induced  by  reason  of  the  pleasure  resort  maintained  thereon." 

In  this  connection  it  was  proved  by  undisputed  parol  evidence  that 
the  purchase  of  the  Pavilion  Grounds  was  contemplated  by  the  rail- 
way company  before  and  at  the  time  the  mortgage  was  executed ;  that 
one  of  the  termini  of  the  road  was  within  those  grounds;  that  the 
sole  object  of  the  purchase  was  to  increase  travel  upon  the  road ;  that 
the  grounds  were  used  in  connection  with  the  road  for  that  purpose 
only;  that  they  were  adapted  to  such  use  and  did  increase  the  traffic 
on  the  road  about  one  hundred  per  cent;  that  the  grounds  were  im- 
proved at  the  expense  of  the  railway  company,  and  were  opened  to 
the  public  as  a  pleasure  resort  at  the  same  time  the  road  was  finished 
and  opened  for  travel,  no  distinct  charge  being  made  for  admission  of 
the  public  to  those  grounds;  that  the  railway  company  furnished  mu- 
sic, a  dance  hall,  and  other  conveniences  for  visitors  and  picnic  parties 
on  Sundays  and  holidays  at  an  expense  of  two  hundred  or  three  hun- 
dred dollars  per  month;  and  that  the  grounds  thus  used  by  the  rail- 
way company  were  worth  three  to  four  times  as  much  as  they  would 
be  for  any  other  purpose. 

The  purpose  for  which  such  evidence  was  introduced,  and  which  it 
served,  was  to  prove  that  the  Pavilion  Grounds  were  acquired  by  the 
railway  company  for  use  and  adapted  to  use  "on  or  about  its  said  lines 
of  railway",  and  thus  to  identify  them  as  being  after-acquired  real  es- 
tate described  in  the  mortgage;  or,  as  may  be  otherwise  expressed,  to 
apply  to  those  grounds  the  description  contained  in  the  mortgage, 
though  the  description,  of  itself,  is  unambiguous  and  sufficiently  certain. 
That  parol  evidence  is  competent  for  this  purpose  does  not  admit  of 
doubt.     Greenleaf  on  Ev.  T[  287;  Hancock  v.  Watson,  18  Cal.  137; 


732  Cases  on  Evidence 

Began  v.  O'Reilly,  32  Cal.   1 1 ;  Marriner  v.  Denison,  78  Cal.  202 ; 
Towle  V.  Cannelo,  99  Cal.  397. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  and 
order  are 

Affirmed. 


GATES  et  al.  v.  BENNETT. 
33  ^rk.  475.     (1878) 

English,  C.  J.  On  the  12th  day  of  March,  1875,  John  Bennett 
brought  an  action  of  replevin  before  Justice  Booth  of  Mattensas  town- 
ship, Prairie  county  against  David  Gates. 

Upon  affidavit  and  bond,  a  writ  of  replevin  was  issued,  the  con- 
stable seized  the  property  sued  for,  and  upon  the  execution  of  a  cross- 
bond  by  defendant,  he  was  permitted  to  retain  possession  of  it. 

It  was  competent  for  appellants  to  prove,  by  parol  evidence,  that  a 
complaint  and  affidavit  were  filed  in  the  replevin  suit,  a  writ  issued, 
bond  executed,  and  the  return  upon  the  writ,  and  that  they  were  all 
in  regular  form,  and  had  been  lost  or  destroyed.  Davis  v.  Pitt,  i  Ark. 
359.  Mason,  adm'r  v.  Bull,  26  Ark.  167.  But  it  was  not  competent 
for  appellants  to  prove  by  the  attorney  who  brought  the  replevin  suit, 
or  by  the  justice  who  rendered  the  judgment,  or  by  any  witness,  that 
the  justice  in  fact  rendered  any  other  or  different  judgment  than  that 
shown  to  have  been  rendered  by  the  transcript  offered  in  evidence. 
Or  that  the  justice  by  mistake,  entered  the  judgment  in  the  names 
and  in  favor  of  Gates  Bros.,  when  it  should  have  been  entered  in 
favor  of  David  Gates,  as  trustee,  etc.  Butler  v.  Owen,  7  Ark.  373. 
Barkman  v.  Hopkins,  6  ib.  157.  State  Bank  v.  Minikin,  12  ib.  719. 
Kimball  v.  Merrick,  20  ib.  12,  and  cases  cited. 

If  the  justice  in  fact  made  a  mistake  in  entering  the  judgment — if 
he  entered  it  in  the  names  and  in  favor  of  Gates  Bros.,  when  it  should 
have  been  entered  in  favor  of  David  Gates,  as  trustee,  etc.,  the  parties 
relying  on  the  judgment  as  a  former  recovery,  should  have  taken  the 
proper  steps  to  have  the  judgment  amended,  and  offered  in  evidence  a 
transcript  of  the  amended  judgment. 

\  Reversed. 


Th^  Parol,  EvrDfiNCE  Rule  jt,2) 

RICHARDSON  v.  SKETCHLEY. 
150  lozva  3P3.     (1911) 

This  is  an  action  to  quiet  title  to  a  small  tract  of  land.    There  was  ^ 
a  decree  for  the  plaintiff,  and  the  defendant  appeals. — Affirmed. 

Evans,  J.  It  is  urged  by  appellant  that  the  deed  under  which  plain- 
tiff claims  is  absolutely  void  for  uncertainty,  and  that  plaintiff  and 
his  grantors  took  nothing  under  it.  This  position  is  not  quite  sound. 
The  deed  standing  alone  would  be  quite  ineffective  for  the  purpose  of 
specific  performance ;  but  is  by  no  means  wholly  void.  It  indicates  on 
its  face  that  Peter  Dyon  did  undertake  for  a  specific  consideration  to 
convey  by  warranty  deed  to  Mrs.  Richardson  a  particular  tract  of 
land  conforming  to  the  description  contained  in  the  deed.  The  descrip- 
tion may  be  aided  by  extrinsic  proof  not  inconsistent  with  the  descrip- 
tion contained  in  the  deed  itself. 

Affirmed. 


ALLEN  &  TRAMMELL  v.  TURNHAM. 

83  Ala.  333.     (1887) 

This  action  was  brought  by  Allen  &  Trammell,  suing  as  partners, 
against  Joseph  C.  Tumham ;  and  was  founded  on  the  defendant's  prom- 
issory note  for  $500,  which  was  dated  the  6th  December,  1873,  and 
payable  twelve  months  after  date,  to  J.  N.  Brisby,  by  whom  it  was 
indorsed  and  transferred  to  plaintiffs.  Indorsed  on  this  note  were  the 
following  credits:  December  2nd,  1874,  $250;  December  24th,  1878, 
$169.31;  and  January  25th,  1882,  $42.13.  The  defendant  pleaded 
usury,  and  a  special  plea  stating  the  facts  which  constituted  the  alleged 
usury;  and  he  was  allowed  by  the  court  to  testify,  against  the  objec- 
tion of  the  plaintiffs,  that  it  was  verbally  agreed  between  him  and 
Brisby,  at  the  time  the  note  was  given,  that,  on  payment  of  one-half 
the  amount  at  maturity,  the  balance  should  be  extended  one  year  at 
twelve  per  cent  interest  per  annum ;  that  this  agreement  was  after- 
wards reduced  to  writing,  as  stipulated  at  the  time  and  $250  was  paid 
on  the  note  at  maturity  as  shown  by  the  indorsed  credit.  The  written 
agreement,  which  was  dated  May  4th,  1874,  and  signed  by  both  of 
the  parties,  was  in  these  words:    "This  will  certify,  to  whom  it  may 


734  Cases  on  Evidence 

concern,  that  whereas  Joseph  C.  Turnham  has  bought  a  tract  of  land 
from  me,  J.  N.  Brisby,  for  which  he  gave  his  note  for  $500,  payable  on 
the  25th  December,  1874,  but  it  is  now  agreed  and  understood  between 
the  parties,  that  in  case  the  said  Turnham  shall  fail  to  pay  the  last  half 
of  the  note,  $250,  by  the  said  25th  December,  1874,  the  said  Brisby 
agreed  to  wait  with  him  for  twelve  months  longer,  the  said  Turnham 
promising  to  pay  him  twelve  and  a  half  per  cent,  per  annum."  The 
court  admitted  this  agreement  as  evidence  against  the  objection  and  ex- 
ception of  the  plaintiffs ;  and  instructed  the  jury,  in  effect,  that,  on  these 
facts,  the  transaction  was  usurious,  and  the  plaintiffs  were  entitled  to  re- 
cover the  balance  due  on  the  note,  if  any  without  interest.  The  plain- 
tiffs excepted  to  each  of  these  rulings,  and  here  assign  them  as  error. 

SoMERViLLE,  J.  It  is  not  contended  there  is  any  usury  in  the  note 
sued  on  which  was  executed  December  sixth,  1873,  payable  to  J.  N. 
Brisby,  twelve  months  after  date,  in  the  sum  of  five  hundred  dollars, 
and  was  transferred  by  Brisby  to  the  plaintiffs.  This  contract  does 
not,  covertly  or  otherwise  stipulate  for  a  higher  rate  of  interest  than 
that  allowed  by  law.  It  is  sought,  however,  to  import  into  the  original 
agreement  the  taint  of  usury,  by  showing  that,  contemporaneously 
with  the  execution  of  the  note,  an  oral  agreement  was  entered  into, 
that,  upon  the  maturity  of  the  note,  the  maker  might  pay  half  of  the 
amount,  and  extend  the  other  half  by  agreeing  to  pay  usurious  inter- 
est, at  the  rate  of  twelve  and  a  half  per  cent  per  annum ;  and  that  this 
latter  agreement  was  subsequently  reduced  to  writing,  on  May  4,  1874, 
and  at  the  maturity  of  the  original  note,  in  December  following,  half 
of  the  sum  was  paid  as  stipulated. 

The  admission  of  this  parol  evidence,  we  think,  was  error.  It  vio- 
lated the  rule,  that  parol,  or  extrinsic  contemporaneous  evidence  is 
inadmissible  to  contradict  or  vary  the  legal  effect  of  a  valid  written 
instrument.  It  must  be  presumed  that  the  parties  to  this  written  instru- 
ment intended  thereby  to  fully  express  their  intention  and  agreement ; 
and  they  are  presumed  to  have  abandoned  all  oral  suggestions,  or  ver- 
bal agreements,  antecedent  to,  or  contemporaneous  with  the  writing, 
having  reference  to  the  subject-matter  of  the  contract.  The  writing 
itself  must  be  deemed  conclusive  as  to  the  matters  embraced  in  it.  The 
note  was  an  agreement  to  pay  eight  per  cent  interest  per  annum,  which 
was  not  usurious,  but  lawful.  The  evidence  introduced  showed  a  con- 
temporaneous oral  agreement  to  pay  twelve  and  a  half  per  cent  per 
annum  which  was  usurious,  and  therefore  unlawful.  This  if  allowable 
would  operate  to  change  the  legal  effect  of  the  original  note,  so  as  to 
make  it  voidable  for  the  interest  from  the  beginning. 


The  Parol  Evidence  Rule  735 

This  evidence  does  not  come  within  the  rule,  that  parol  evidence  is 
always  admissible  to  show  the  illegality  of  the  consideration,  or  sub- 
ject-matter of  a  written  agreement.  If  the  original  note,  here  sued 
on,  had  been  usurious,  it  matters  not  by  what  words  of  device,  or  acts 
of  artifice  or  evasion,  it  was  sought  to  be  concealed  under  false  recitals 
in  the  writing,  this  fact  could  be  proved  by  oral  evidence.  But  the  sub- 
stitution of  an  oral  usurious  contract  in  the  place  of  a  written  one 
not  usurious,  is  not  permissible,  when  the  one  is  contemporaneous  with 
the  other,  as  in  this  case. 

This  evidence  being  excluded,  the  case  is  completely  analogous  to 
Van  Biel  v.  Fordney,  yy  Ala.  76,  where  it  was  decided  that,  when  the 
original  transaction  is  not  usurious,  a  subsequent  agreement  to  pay 
illegal  interest,  in  consideration  of  forbearance,  will  not  impart  to  the 
former  the  taint  of  usury  so  long  as  the  first  contract  remains  in  force, 
without  renewal,  discharge,  or  cancellation,  the  subsequent  contract 
alone  is  aflfected  by  the  usury,  and  the  payments  of  illegal  interest 
will  be  regarded  merely  as  partial  payments  on  the  original  debt. 

The  usurious  agreement  of  May  4th,  1874,  which  was  reduced  to 
writing  by  Turnham  and  Brisby,  does  not  renew,  discliarge  or  cancel 
the  original  note,  but  is  entirely  collateral  to  it,  leaving  it  in  full  force 
and  effect.  The  suit  on  the  original  agreement  is  such  an  abandonment 
of  the  subsequent  one  as  to  expurgate  the  taint  of  usury,  which  might 
otherwise  be  made  to  inhere  to  the  transaction.  Masterson  v.  Grubbs, 
70  Ala.  406. 

These  principles  will  settle  the  case  upon  all  points  likely  to  be  con- 
sidered on  another  trial,  the  note  sued  on  not  being  usurious  under  the 
facts  set  out  in  the  bill  of  exceptions.    This  is  all  we  need  to  decide. 

Reversed  and  remanded. 


BURNS  &  SMITH  LUMBER  CO.  v.  DOYLE. 
yj  Conn.  742.     (i8p8-pp) 

Action  by  the  payee  against  the  acceptor  of  a  bill  of  exchange  to 
recover  the  amount  thereof.  Curtis,  J.  Facts  found  and  judgment 
rendered  for  the  defendant,  and  appeal  by  the  plaintiff  for  alleged 
errors  in  the  rulings  of  the  court. 

The  following  is  a  copy  of  the  bill  of  exchange  counted  upon  in  the 
complaint : 


736  Cases  on  Evidence 

"Bridgeport,  Conn.,  June  24,  1893. 
"Mr.  Thomas  Doyle: 

"Please  pay  to  The  Burns  &  Smith  Lumber  Co.,  or  order,  the  sum 
of  four  hundred  twenty  ($420.00)  and  no/ioo  dollars,  value  received, 
and  charge  the  same  to  my  account. 

"E.  P.  Mills. 

"Accepted,  June  24,  1893.  Thos.  A.  Doyle." 

The  answer  as  finally  amended  consisted  of  two  defenses,  as  fol- 
lows: 

"First  Defense,  i.  The  defendant  accepted  the  bill  of  exchange 
at  the  solicitation  of  the  plaintiff,  upon  the  express  condition  that  only 
upon  the  defendant's  becoming  indebted  for  services  to  the  drawer  of 
said  bill  should  the  defendant  be  called  upon  to  pay  or  be  made  liable 
upon  said  bill  of  exchange.  2.  The  defendant  says  he  is  not  liable 
upon  said  bill,  because  the  drawer  of  the  same  never  performed  any 
service  for  the  defendant,  nor  did  the  defendant  become  indebted  to 
said  drawer  after  said  acceptance  of  said  bill. 

"Second  Defense,  i.  The  defendant  says  that  at  the  time  of  the 
said  acceptance  of  said  bill  he  did  not  owe  the  drawer  of  said  bill, 
or  the  plaintiff,  or  either  of  them,  upon  any  demand  whatever,  and  that 
said  acceptance  was  known  to  the  defendant  and  to  said  plaintiff  to 
be  wholly  without  consideration,  and  that  said  plaintiff  is  not  a  bona 
fide  holder  for  value  of  said  bill  of  exchange.  2.  The  matters  con- 
tained in  the  first  defense  are  made  part  of  this  defense." 

The  reply  was  a  general  denial. 

The  plaintiff  objected  to  the  introduction  of  any  parol  evidence  to 
prove  the  allegations  of  the  defenses,  or  either  of  them,  and  to  all  evi- 
dence tending  to  prove  the  foregoing  facts,  except  the  fact  of  acceptance. 
The  court  overruled  the  objection  and  admitted  the  evidence. 

The  plaintiff  also  claimed  that  upon  the  facts  found  judgment  should 
be  rendered  in  its  favor,  and  the  court  overruled  this  claim.  The  rea- 
sons of  appeal  are  based  upon  these  adverse  rulings. 

Torrance,  J.  The  acceptance  sued  upon  is  in  writing,  and  is  an 
absolute  and  unqualified  one,  as  distinguished  from  a  conditional  one. 
It  is  well  settled  that  in  an  action  at  law  such  an  acceptance  cannot  be 
cut  down  to  a  conditional  one,  even  by  the  clearest  proof  of  a  con- 
temporaneous oral  agreement  to  that  effect.  Such  an  agreement,  how- 
ever conclusively  proved,  would  not  avail  the  defendant  for  such  a 
purpose,  and  therefore  all  evidence  of  it  is  excluded.  Osborne  v.  Tay- 
lor, 58  Conn.  439;  Averill  v.  Sawyer,  62  id.  560;  Caulfield  v.  Her- 
mann, 64  id.  325 ;  Hills  v.  Farmington,  70  id.  450,  453. 


Thb  Paroi,  EviDENcie  RuLS  737 

But  if  the  written  acceptance  was  delivered  to  the  plaintiff  upon  an 
oral  condition  assented  to  by  the  plaintiff,  that  it  was  not  to  become  oper- 
ative, or  have  any  existence  at  all  as  an  acceptance,  until  the  cottage 
was  completed  and  the  money  became  due  to  Mills,  that  condition,  if 
proved,  would  avail  the  defendant,  and  under  proper  pleadings  evi- 
dence of  such  a  conditional  delivery  would  be  admissible.  McFarland 
V.  Sikes,  54  Conn.  250;  Trumbull  v.  O'Hara,  71  id.  172;  Michels  v. 
Olmstead,  157  U.  S.  198;  Bedell  v.  Wilder,  65  Vt.  406;  Pym  v.  Camp- 
bell, 6  El.  &  Bl.  370;  Pattle  v.  Hornibrook,  L.  R.  (1897)  i  Ch.  Div.  25. 

The  general  rule  applied  in  the  former  class  of  cases  is,  that  a  prior 
or  contemporaneous  oral  agreement  intended  to  add  to  or  cut  down  or 
vary  a  written  agreement  is  without  legal  effect.  It  is  founded  on  the 
principle  that  the  writing  expresses  the  final  views  of  the  parties  to 
the  exclusion  of  all  extrinsic,  prior  or  contemporaneous  agreements 
or  understandings.  It  is  a  salutary  rule  and  should  be  strictly  adhered 
to. 

The  rule  applied  in  the  latter  class  of  cases  is,  that  you  may  show 
that  a  writing  purporting  to  be  a  contract  never  came  into  existence 
as  a  contract,  or  has  ceased  to  be  a  contract,  and  may  show  this,  of 
course,  by  evidence  outside  of  the  writing.  This  latter  rule  is  not  an 
exception  to  the  former  nor  an  infringement  of  it. 

The  practical  distinction  between  the  two  rules  was  tersely  stated 
by  Erie,  J.,  Pym  v.  Campbell,  supra,  as  follows : 

"The  distinction  in  point  of  law  is  that  evidence  to  vary  the  terms 
of  an  agreement  in  writing  is  not  admissible,  but  evidence  to  show  that 
there  is  not  an  agreement  at  all  is  admissible."  Where  a  defense  of  this 
kind  is  set  up  in  a  case  in  which  the  written  contract  has  been 
actually  delivered  to  the  other  party,  as  in  this  case,  the  proof  of 
conditional  delivery  ought  to  be  clear  and  strong.  In  such  case  posses- 
sion of  the  contract  by  the  other  party  is  prima  facie  evidence  of  an 
unconditional  delivery.     McFarland  v.  Sikes,  54  Conn.  250,  251. 

In  the  court  below  the  defendant  claimed  that  the  acceptance  sued 
upon  came  within  the  latter  class  of  cases,  and  he  therefore  claimed  the 
right  to  show,  not  a  conditional  acceptance,  but  a  conditional  delivery 
of  an  acceptance;  a  delivery  under  the  terms  of  which  the  writing 
signed  by  the  defendant  never  became  a  contract  at  all.  The  defend- 
ant claimed  the  right  fo  prove  such  a  delivery  under  the  pleadings. 

The  plaintiff  claimed  that  evidence  of  such  a  delivery  was  not  ad- 
missible under  the  pleadings,  and  the  court  overruled  this  claim,  and 
against  the  plaintift''s  objection  admitted  the  evidence;  and  one  of  the 
questions  upon  this  appeal  is  whether  the  court  erred  in  so  doing. 


738  Cases  on  Evidence 

Leaving  out  of  view  for  the  present  the  defense  of  want  of  con- 
sideration, we  think  the  answer  sets  up  a  conditional  oral  acceptance, 
and  not  a  conditional  delivery  of  an  acceptance.  It  alleges,  in  effect 
that  the  absolute  written  acceptance  was  made,  but  was  made  upon  an 
oral  condition  that  the  defendant  should  not  be  called  upon  to  pay  it, 
or  be  made  liable  upon  it,  except  in  a  certain  stated  contingency.  This 
is  nothing  more  or  less  than  an  allegation  of  the  existence  of  a  con- 
temporaneous oral  agreement  that  the  absolute,  written  acceptance 
should  be  treated  as  a  conditional  one.  The  defense  in  question  con- 
tains no  hint  that  the  acceptance  was  delivered  conditionally,  within  the 
meaning  of  the  cases  upon  which  the  defendant  relies.  It  is  analogous 
to  the  defenses  set  up  in  Osborne  v.  Taylor,  supra,  and  in  Beard  v. 
Boylan,  59  Conn.  181,  which  were  held  to  be  demurrable,  because  they 
each  set  up  a  contemporaneous  oral  agreement  to  effect  a  written  con- 
tract. On  the  same  ground  we  think  the  defense  in  question  could  not 
have  stood  the  test  of  a  demurrer.  Under  this  defense,  then,  the  de- 
fendant was  not  entitled  to  prove  such  a  conditional  delivery  as  he 
claimed,  because  that  fact,  if  it  existed,  was  not  within  the  issue,  and 
evidence  of  it  should  have  been  excluded. 

Furthermore,  in  this  view  of  the  matter,  if  the  facts  found  are  to 
be  regarded  as  establishing  a  conditional  delivery  of  the  acceptance, 
the  finding  goes  entirely  outside  of  the  issue,  and  such  a  finding  fur- 
nishes no  support  for  a  judgment  based  upon  facts  so  found.  Atwood 
V.  Welton,  57  Conn.  514;  Ives  v.  Goshen,  63  id.  79. 

The  plaintiff  further  claims  that  even  if  the  facts  found  were  prov- 
able under  the  pleadings,  yet  the  finding  does  not  show  a  conditional 
delivery  of  the  acceptance,  as  distinguished  from  a  conditional  accept- 
ance. Upon  this  point  the  finding  is  not  free  from  doubt,  but  we  think 
the  fair  import  of  it  is  that  the  acceptance  was  delivered  upon  a  condi- 
tion that  it  was  not  to  take  effect  at  all  as  an  acceptance  except  upon  a 
stated  contingfency.  That  was  the  ground  upon  which  the  judgment 
was  based,  and  apparently  the  sole  ground ;  and  taking  the  record  as  a 
whole  we  think  the  finding  is  that  the  delivery  was  conditional. 

As  there  must  be  new  trial  for  reasons  already  given,  we  deem 
it  unnecessary  to  consider  or  decide  the  questions  raised  by  the  defense 
of  want  of  consideration  for  the  acceptance. 

There  is  error  and  a  new  trial  is  granted. 

In  this  opinion  the  other  judges  concurred. 


The  Parol  Evidence;  Rule  739 

GREASON  V.  ST.  L.,  I.  M.  &  S.  RY. 
112  Mo.  App.  ii6.    (1905) 

The  petition  alleged  and  the  evidence  proved,  that  the  defendant, 
instead  of  keeping  its  agreement  to  carry  the  ties  to  East  St.  Louis  for 
ten  cents  a  hundredweight,  charged  and  collected  a  higher  rate,  to-wit : 
thirteen  and  one-quarter  to  fifteen  cents  a  hundredweight,  which  higher 
rate  the  plaintiffs  were  compelled  to  pay ;  that  afterwards  plaintiffs 
demanded  the  excess  of  freight  charged  ($250)  which  defendant  re- 
fused to  pay;  wherefore  judgment  was  prayed  for  said  sum.  The 
answer  was  a  general  denial.  The  articles  actually  shipped  were  hewn 
switch  ties.  The  defendant  company  charged  the  plaintiffs  more  than 
ten  cents  per  hundredweight  for  transporting  the  ties  from  the  points 
of  shipment  to  East  St.  Louis.  The  essential  dispute  is  as  to  whether 
the  letter  from  defendant's  freight  agent,  quoting  a  rate  for  hauling 
lumber,  constituted  an  agreement  on  the  part  of  the  defendant  to  carry 
hewn  switch  ties  at  ten  cents  a  hundredweight — that  is,  whether  hewn 
ties  are  lumber  within  the  meaning  of  the  defendant's  agreement  to 
transport  lumber  for  ten  cents  a  hundredweight.  To  maintain  their 
position  that  switch  ties  are  lumber  the  plaintiffs,  over  the  defendant's 
objection,  introduced  the  definition  of  the  word  "lumber"  given  in  the 
Universal  Dictionary,  to-wit:  "Lumber  (Noun) — Marketable  timber. 
Lumber  (Verb) — To  cut  forest  timber  and  prepare  it  for  market." 
An  exception  was  saved  to  the  admission  of  that  evidence. 

The  jury  returned  a  verdict  for  plaintiffs  for  $19.46  and  the  railroad 
company  appealed. 

GooDE,  J.  (after  stating  the  facts). — It  will  be  observed  from  the 
foregoing  statement  that  the  plaintiffs  declared  on  a  supposed  agree- 
ment by  the  defendant  contained  in  the  letter  dated  January  20,  1902, 
to  transport  switch  ties  from  Harviell  and  Poplar  Bluff  to  East  St. 
Louis,  for  ten  cents  a  hundredweight.  It  is  alleged  that,  relying  on 
said  agreement,  plaintiffs  shipped  nineteen  carloads  of  ties  and  were 
charged  an  excess  above  the  rate  mentioned,  in  violation  of  the  agree- 
ment.    The  letter  quoted  a  rate  on  lumber,  not  on  ties. 

The  solution  of  this  case  depends,  therefore,  on  what  the  defendant 
meant  by  the  word  "lumber"  or  rightly  as  understood  by  plaintiffs  to 
mean.  The  meaning  of  the  word  is  vague  and  indefinite  and  it  has  dif- 
ferent senses  according  to  the  context  in  which  it  is  used  in  docu- 
ments, or  the  nature  of  the  transactions  to  which  the  parties  refer. 

No  decision  has  been  cited  that  "lumber"  means  hewn  ties.    If  the 


740  Cases  on  Evidence 

word  lumber  has  any  peculiar  meaning  among  dealers  in  it  or  in  trans- 
portation circles,  which  would  embrace  or  exclude  hewn  ties,  no  evi- 
dence of  the  fact  was  offered.  The  meaning  to  be  applied  to  the  word 
in  the  letter  in  question  is  its  ordinary  meaning  in  vernacular  speech, 
unless  the  previous  dealings  between  the  plaintiffs  and  the  defendant, 
or  the  circumstances  uiuler  which  the  letter  was  written,  or  the  light 
thrown  on  the  intentioi;  of  the  letter  by  the  other  facts  in  evidence, 
the  tariff  sheet  and  the  testimony  of  the  freight  agent,  compel  a  differ- 
ent significance.  All  this  evidence  was  introduced  by  the  plaintiffs 
and  they  are  in  no  position,  therefore,  to  deny  its  truthfulness.  We 
emphasize  the  fact  that  this  is  an  action  on  a  specific  written  agree- 
ment and  is  to  be  determined  exclusively  by  ascertaining  what  that 
agreement  was.    Laclede,  etc.,  Co.  v.  Iron  Works,  169  Mo.  137,  69  S. 

W.  384. 

All  the  evidence  tending  to  explain  what  the  defendant  meant  when 
it  said  "lumber",  either  in  the  letter  declared  on  or  other  documents, 
goes  to  show  it  did  not  mean  hewn  switch  ties. 

^  The  rule  of  law  that  extrinsic  evidence  may  be  received  to  identify 
the  subject-matter  of  an  ambiguous  contract,  has  no  application  here, 
because  the  agreement  in  defendant's  letter  had  no  particular  subject- 
matter.  That  rule  is  employed  to  ascertain  what  property  was  intended 
by  an  agreement  in  reference  to  some  particular  property  too  loosely 
described  to  be  identified  from  the  description  alone. 

Thus  if  a  contract  of  sale  describes  the  thing  sold  indefinitely,  it 
may,  within  lim.its,  be  helped  out  by  extrinsic  evidence.  Macdonald  v. 
Longbottom,  i  E.  &  E.  597;  M'Adie  v.  Sills,  24  U.  S.  C.  606;  2  Tay- 
lor, Evidence  (6  Ed.),  sec.  1080.  ,We  conceive  it  to  be  the  duty  of 
a  court  to  say  what  is  meant  by  a  word  in  an  instrument,  used  as  far  as 
appears,  in  its  ordinary,  instead  of  a  technical  or  trade  sense,  or  a 
peculiar  one  adopted  by  the  parties. 

As  "lumber"  is  a  word  of  vague  meaning,  testimony  to  show  the 
sense  in  which  these  parties  used  it  was  competent ;  but  there  was  none 
introduced  to  show  it  was  employed  in  an  unusual  sense  and  therefore, 
its  usual  one  must  be  accepted  in  interpreting  their  agreement.  Wil- 
liams V.  Lumber  Co.,  72  Wis.  487 ;  Dutch  v.  Anderson,  75  Ind.  40.  The 
words  of  a  contract  are  to  be  understood  in  their  popular  and  accepted 
sense  unless  something  indicates  that  a  different  meaning  was  attached 
to  them  by  the  persons  concerned.  Lovelace  v.  Assn.,  126  Mo.  104, 
28  S.  W.  877.  And  it  is  the  duty  of  a  court  to  interpret  writings  free 
from  amV^iguity.    Mathews  v.  Danahy,  26  Mo.  App.  660. 

The  essence  of  this  case  is  not  whether  ties  ought  to  have  been 


Thd  Paroi,  Evidence  Rule  741 

carried  at  lumber  rates  according  to  the  tariff  sheets  (and  the  tariff 
sheets  in  fact  stated  to  the  contrary),  but  whether  defendant  when  it 
gave  a  rate  for  kimber,  meant  to  give  and  was  understood  to  give  a  rate 
for  hewn  switch  ties.  Curtain  poles  and  wagon  spokes  are  put  in  the 
tariff  sheets  among  other  things  carried  at  the  lumber  rate.  But  who 
would  say  they  are  lumber  or  that  an  agreement  to  carry  lumber  was 
an  agreement  to  carry  them?  Neither  the  letter  itself,  nor  the  ex- 
trinsic evidence  before  us  supports  the  plaintiffs'  case. 

The  judgment  is,  therefore,  reversed. 
All  concur. 


SAMUEL  H.  CHUTE  CO.  v.  LATTA. 
I2S  Minn.  69.     (1913) 

Hallam,  J. 

1.  Plaintiff  leased  certain  premises  to  one  Dahlquist.  Later,  by  a 
written  agreement  in  which  plaintiff,  defendant  and  Dahlquist  joined. 
Dahlquist  assigned  the  lease  to  defendant,  defendant  assumed  all  obHga- 
tions  of  the  lessee  hereunder,  and  plaintiff  consented  to  the  assignment. 
This  action  is  brought  to  recover  two  instalments  of  rent  due  upon 
the  lease  so  assigned.  The  defense  is  that  there  was  a  concurrent 
verbal  agreement  that  the  written  contract  should  be  no  longer  oper- 
ative, in  the  event  defendant  should  form  a  corporation  known  as  the 
Cozy  Photo  Play  Company,  and  should  assign  the  lease  to  such  cor- 
poration when  formed.  It  is  claimed  that  this  corporation  was  or- 
ganized and  the  assignment  made.  The  one  question  in  the  case  is: 
Was  it  competent  for  defendant  to  prove  the  verbal  agreement  that 
the  written  contract  should  not  be  enforced  in  the  contingency  men- 
tioned?   We  hold  that  it  was  not. 

2.  These  parties  reduced  their  agreement  to  writing.  "All  the  au- 
thorities are  substantially  agreed  that  where,  in  the  absence  of  fraud, 
accident,  or  mistake,  the  parties  have  deliberately  put  their  contract  into 
a  writing  which  is  complete  in  itself,  and  couched  in  such  language 
as  imports  a  complete  legal  obligation,  it  is  conclusively  presumed  that 
they  have  introduced  into  the  written  instrument  all  material  terms 
and  circumstances  relating  thereto."  Wheaton  Roller-Mill  Co.  v.  John 
T.  Noye  Mnfg.  Co.,  66  Minn.  156,  159,  68  N.  W.  854,  855. 

3.  It  is  contended  that  the  written  agreement  in  this  case  embodied 


742  Cases  on  Evidence 

only  part  of  the  agreement  of  the  parties,  and  that  it  was  executed  to 
partially  carry  out  a  prior  verbal  agreement. 

It  is  true  that,  where  a  part  only  of  the  agreement  between  the  par- 
ties is  reduced  to  writing,  it  is  competent  to  prove  by  parol  the  exist- 
ence of  any  separate  oral  agreement  as  to  any  matter  on  which  the 
document  is  silent,  and  which  is  not  inconsistent  with  its  terms. 
Phoenix  Pub.  Co.  v.  Riverside  Clothing  Co.,  54  Minn.  205,  206,  55  N. 
W.  912.  But  this  agreement  was  not  incomplete.  The  criterion  of 
completeness  or  incompleteness  of  the  writing  is  the  writing  itself.  We 
do  not  mean  that  the  court  is  limited  to  a  mere  inspection  of  the  docu- 
ment. As  in  other  cases  of  doubtful  construction,  the  court  is  at 
liberty  to  view  the  circumstances  under  which,  and  the  purpose  for 
which,  the  writing  was  executed.  Where  the  writing,  construed  in  the 
light  of  such  circumstances,  shows  that  it  was  not  meant  to  contain 
the  whole  bargain  between  the  parties,  then  parol  evidence  is  ad- 
missible to  prove  a  term  upon  which  the  writing  is  silent,  and  which  is 
not  inconsistent  with  what  is  written;  but,  if  it  shows  that  the  writing 
was  meant  to  contain  the  whole  bargain  between  the  parties,  no  parol 
evidence  can  be  permitted  to  introduce  a  term  which  does  not  appear 
there.  Wheaton  Roller-Mill  Co.  v.  John  T.  Noye  Mnfg.  Co.,  66  Minn. 
156,  160,  68  N.  W.  854;  Potter  v.  Easton,  82  Minn.  247,  250,  84  N. 
W.  loii. 

Tested  by  this  rule  it  cannot  be  held  that  the  written  contract  is  in- 
complete. By  its  terms  it  makes  the  obligation  to  pay  absolute.  There 
are  no  surrounding  circumstances  that  place  the  contract  in  any  differ- 
ent light.  The  proof  of  surrounding  circumstances  that  defendant  in- 
troduced was  simply  proof  that  the  contract  made  was  different  from 
the  terms  written  instrument.  Such  evidence  is  not  permissible.  To 
allow  a  party  to  lay  the  foundation  for  such  parol  evidence  by  oral 
testimony  that  only  part  of  the  agreement  was  reduced  to  writing,  and 
then  prove  by  parol  the  part  omitted,  would  be  to  work  in  a  circle  and 
to  permit  the  very  evil  which  the  rule  was  designed  to  prevent.  Thomp- 
son V.  Libby,  34  Minn.  374,  377,  26  N,  W.  i ;  Wheaton  Roller-Mill 
Co.  V.  John  T.  Noye  Mnfg.  Co.,  66  Minn.  156,  68  N.  W.  854;  17  Cyc. 
716,  717. 

4.  It  is  contended  that  the  alleged  parol  stipulation  was  a  contract 
collateral  to  the  written  agreement  sued  on,  and  that  on  that  ground 
it  was  proper  to  prove  it. 

It  is  true  that  proof  is  admissible  of  any  collateral  parol  agreement, 
or  of  any  independent  fact,  which  is  not  inconsistent  with,  or  does  not 
qualify,  any  of  the  terms  of  the  written  contract,  even  though  it  may 


The  Parol  Evidence  Rule  743 

relate  to  the  same  subject-matter.  Backus  v.  Sternberg,  59  Minn,  403, 
61  N.  W.  335 ;  H.  H.  King  &  Co.  v.  Dahl,  82  Minn.  240,  84  N.  W. 
737.  But  the  alleged  oral  stipulation,  which  defendant  attempted  to 
prove  in  this  case,  was  in  no  sense  collateral  to  or  independent  of  the 
main  contract.  The  alleged  oral  stipulation  provided  that  the  obliga- 
tion shall  be  conditional,  and  provided  for  nothing  else.  The  par- 
ticular element  of  the  alleged  intrinsic  evidence  is  accordingly  dealt 
with  in  the  writing.  Defendant  simply  attempted  to  prove  that  it  was 
verbally  stipulated  as  an  integral  part  of  the  negotiation  that  the  obliga- 
tion, which  by  the  terms  of  the  writing  was  absolute,  should  in  fact 
be  conditional.    This  he  cannot  do. 

5.  It  is  further  contended  that  it  was  proper  for  defendant  to  prove 
a  contemporaneous  verbal  agreement  that  he  should  be  relieved  from  his 
written  contract  on  the  occurrence  of  a  future  contingent  event,  or 
upon  compliance  with  a  future  condition. 

It  is  true  that,  -in  case  of  a  simple  contract  in  writing,  it  is  compe- 
tent to  show  by  parol  that,  notwithstanding  its  delivery,  the  parties  in- 
tended that  it  should  be  operative  as  a  contract  only  upon  the  happening 
of  a  future  contingent  event,  or  the  performance  of  a  condition,  such 
as  that  it  should  first  be  executd  by  some  other  person.  Merchants' 
Exchange  Bank  v.  Luckow,  37  Minn.  542,  35  N.  W.  434;  Westman 
V.  Krumweide,  30  Minn.  313,  15  N.  W.  255;  Skaaraas  v.  Finnegan, 
31  Minn.  48,  16  N,  W.  456;  Smith  v.  Mussetter,  58  Minn.  159,  59  N. 
W.  995 ;  Mendenhall  v.  Ulrich,  94  Minn.  100,  loi  N.  W.  1057.  Such 
evidence  tends  to  prove  a  condition  precedent  to  the  attachment  of  any 
obHgation  under  the  written  instrument.  This  is  not  to  vary  a  written 
instrument,  but  to  prove  that  no  contract  was  ever  made — That  its 
obligation  never  commenced.  Smith  v.  Mussetter,  58  Minn.  159,  59 
N.  W.  995.  But  the  verbal  stipulation  alleged  in  this  case  was  not  a 
condition  precedent.  The  obligation  of  defendant  unquestionably  took 
effect  as  a  complete  contract. 

Order  affirmed. 


744  Cases  on  Evidi5nce 

RAILWAY  CO.  V.  TRUSKETT. 
d/  Kan.  26.     (190s) 

The  opinion  of  the  court  was  dehvered  by 

Smith,  J.  At  the  time  the  written  agreement  was  made  on  which 
this  action  was  based,  defendants  in  error,  as  promoters  and  stock- 
holders of  the  Kansas,  Oklahoma  Central  &  Southwestern  Railway 
Company,  had  laid  out  a  right  of  way  from  Caney,  in  Montgomery 
county,  Kansas,  to  Bartlesville,  in  the  Cherokee  nation,  and  a  line  from 
the  latter  town  to  Collinsville,  a  distance  of  about  thirty-five  miles,  and 
had  done  some  grading  along  the  route.  They  were  prosecuting  the 
work  under  the  rights  of  way  granted  by  acts  of  congress  referred  to 
in  the  statement.  The  amended  petition  of  plaintiffs  below  contains 
this  allegation  with  reference  to  the  contract  between  the  parties : 

"That  it  is  not  definitely  stated  in  said  writing  how  many  miles  of 
said  railway  were  to  be  constructed  by  defendant,  nor  when ;  whereas, 
it  was  in  fact  understood  and  agreed  that  thirty-five  (35)  miles  should 
be  built,  and  completed,  within  twelve  months  of  the  time  when  85  per 
cent,  of  said  capital  stock  of  said  corporations  had  been  delivered  to 
defendant  by  plaintiffs,  and  other  things  done  as  in  said  writing  enumer- 
ated, and  that  the  balance  of  said  railway,  and  the  branches  thereof 
mentioned  in  said  last-named  act  of  congress,  should  be  built  and  con- 
structed within  the  time  fixed  for  the  completion  thereof  in  said  act 
of  congress." 

To  remove  the  alleged  indefinite  terms  in  the  contract,  oral  testimony 
was  admitted  by  the  trial  court,  confined  mainly  to  conversation  be- 
tween the  officers  of  the  Atchison  company  and  the  plaintiffs  below, 
at  and  before  the  time  the  writing  was  signed,  wherein  the  former 
stated,  in  effect,  that  all  concessions  and  donations  received  on  lines 
of  road  built  under  the  authority  of  the  acts  of  congress  mentioned, 
beyond  the  stipulated  thirty-five  miles,  should  go  to  the  plaintiffs. 

It  was  the  contention  of  plaintiffs  below  that  the  Hne  which  the 
Atchison  company  aided  in  building  from  Guthrie  to  Pawnee,  a  dis- 
tance of  100  miles,  known  as  "The  Eastern  Oklahoma  railway,"  and 
for  the  building  of  which  concessions  were  received,  was  constructed 
along  a  route  provided  for  in  the  acts  of  congress  granting  the  right 
of  way  to  the  Kansas,  Oklahoma  Central  &  Southwestern  Railway 
Company,  of  which  they  were  stockholders,  and,  therefore,  under  the 
terms  of  the  contract  of  sale  sued  on,  after  its  meaning  was  made 
certain,  that  plaintiffs  below  were  entitled  to  such  concessions,  aids. 


The  Parol  Evidence  Rui.e  745 

and  donations.  The  exact  language  employed  by  the  parties  in  the 
written  contract  was  this  : 

"The  Atchison  company  agrees  that  within  twelve  months  of  the 
transfer  and  delivery  to  it  of  not  less  than  eighty-five  per  cent,  of 
the  capital  stock  of  the  Oklahoma  companies,  and  transfer  to  it  or 
payment  and  satisfaction  of  all  outstanding  indebtedness  and  other 
obligations  of  the  Oklahoma  companies,  and  any  liens  or  encumbrances 
upon  their  property,  it  will  complete  or  build,  or  cause  to  be  built,  at 
least  thirty-five  (35)  miles  of  its  railroad,  from  the  junction  near 
Bartlesville,  Indian  Territory,  towards  Collinsville,  Indian  Territory, 
and  cause  the  Oklahoma  companies,  and  each  of  them,  to  assign  and 
transfer  to, the  stockholders,  the  parties  of  the  first  part  herein,  all  right, 
title  and  interest  of  said  companies,  and  each  of  them,  in  or  to  any  aids, 
concessions  or  donations  obtained  along  the  lines  of  railroad  of  said 
companies  as  constructed  and  described  in  said  railway-extension  bill." 

It  is  not  alleged  that  the  words  of  the  instrument  are  susceptible  of 
two  different  constructions,  or  are  not  intelligible,  the  charge  being  that 
"it  is  not  definitely  stated  in  said  written  contract  how  many  miles  of 
said  railway  were  to  be  constructed  by  said  defendant,  nor  when."  We 
do  not  think  the  language  of  the  contract  is  subject  to  the  criticism 
made  of  it  with  respect  to  the  maximum  number  of  miles  of  road  to  be 
built.  It  was  for  an  increase  of  this  expressed  maximum  that  plain- 
tiffs below  called  extraneous  testimony  to  their  aid. 

The  words  used  convey  to  our  minds  a  definite  and  clearly  expressed 
refusal  of  the  Atchison  company  to  bind  itself  to  build,  or  cause  to  be 
built,  more  than  thirty-five  miles  of  railroad  along  the  route  described 
in  the  railway-extension  bill.  The  thirty-five  miles  of  road  which  the 
Atchison  company  agreed  with  the  stockholders  should  be  constructed 
was  built  along  the  line  described  in  the  railway-extension  bills  in  com- 
pliance with  the  contract.  The  complaint  of  the  plaintiffs  below  was 
that  the  Atchison  company  built  135  miles  of  road  under  the  same 
grants  from  congress,  and  that  the  aids  and  donations  received  along 
the  last  100  miles  belonged  to  them. 

There  is  no  claim  that  plaintiffs  did  not  get  the  aids  and  donations 
along  the  thirty-five  miles  from  the  Kansas  state  line  south,  but  the 
action  was  brought  to  recover  the  value  of  the  concession  received  on 
the  line  of  road  from  Guthrie  northeast  to  Pawnee,  a  distance  of  about 
100  miles,  alleged  to  have  been  built  by  the  Atchison  company  under 
the  name  of  the  Eastern  Oklahoma  Railway  Company. 

Conceding  that  the  road  from  Guthrie  to  Pawnee  was  constructed 
and  owned  by  the  Atchison  company,  and  that  all  donations  and  aids 


746  Cases  on  Evidence 

went  to  it,  yet,  in  order  to  recover  for  a  breach  of  the  contract,  Trus- 
kett  and  his  associates  must  show  that  by  its  provisions  such  aids  and 
donations  belonged  to  them.  They  cannot  do  this  by  enlarging  the 
terms  of  a  written  instrument  which  is  not  ambiguous  or  of  doubtful 
meaning,  resorting  to  parol  testimony  to  that  end.  The  mere  asser- 
tion by  a  party  to  a  written  contract  that  uncertainties  and  ambiguities 
exist  in  it  will  serve  no  purpose  when,  by  a  perusal  of  the  writings, 
the  court  can  find  no  equivocal  language  employed. 

Again,  the  writing  is  sought  to  be  reformed  by  parol  testimony  in 
respect  to  the  time  of  performance  of  those  things  which  it  is  alleged 
that  the  Atchison  company  agreed  to  do  as  shown  aliunde  the  contract. 
It  is  averred  that  the  limitation  of  twelve  months  in  which  it  stipulated 
to  build  the  road  a  distance  of  not  less  than  thirty-five  miles  should  be 
extended  beyond  that  time  as  to  the  number  of  miles  it  built  between 
Guthrie  and  Pawnee  to  a  time  limited  only  by  the  date  for  completion, 
fixed  in  the  last  act  of  congress.  This  would  be  a  violent  wresting  of 
obvious  language  out  of  the  written  agreement,  and  substituting  there- 
for words  which  the  parties  themselves  were  careful  not  to  use.  The 
rule  of  law  applicable  to  the  case  is  old  and  familiar.  It  was  well 
stated  in  Naumberg  v.  Young,  44  N.  J.  L.  331,  339,  43  Am.  Rep.  380, 
as  follows: 

"The  only  safe  criterion  of  the  completeness  of  a  written  contract 
as  a  full  expression  of  the  terms  of  the  parties'  agreement  is  the  con- 
tract itself.  When  parties  have  deliberately  put  their  mutual  engage- 
ments into  writing  in  such  language  as  imports  a  legal  obHgation,  it  is 
only  reasonable  to  presume  that  they  have  introduced  into  the  written 
instrument  every  material  term  and  circumstance;  and,  consequently, 
all  parol  testimony  of  conversations  held  between  the  parties,  or  of 
declarations  made  by  either  of  them,  whether  before  or  after,  or  at  the 
time  of  the  completion  of  the  contract,  will  be  rejected.  2  Tayl.  Ev. 
Sec.  1035." 

See,  also,  Thisler  v.  Mackey,  65  Kan.  464,  70  Pac.  334;  Ehrsam  v. 
Brown,  64  id.  466,  67  Pac.  867 ;  Getto  v.  Binkert,  55  id.  617,  40  Pac.  925 ; 
Assurance  Co.  v,  Norwood,  57  id.  610,  47  Pac.  529;  MiHch  v.  Armour, 
60  id.  229,  56  Pac.  15;  Trice  v.  Yoeman,  60  id.  742,  57  Pac.  955; 
Wilson  V,  Jones,  48  id.  767,  30  Pac.  117;  Drake  v.  Dodsworth,  4  id.  159; 
Trustees  of  Southampton  v.  Jessup,  173  N.  Y.  84,  65  N.  E.  949; 
United  Press  v.  New  York  Press  Co.,  164  N.  Y.  406,  58  N.  E.  527, 
53  L.  R.  A.  288;  Tracey  v.  The  Union  Iron  Works,  104  Mo.  193,  16 
S.  W.  203.    In  the  last  case  cited  (p.  199)  it  was  said: 

"We  may,  however,  properly  remark  that  the  adoption  of  the  modern 


The  Paroi.  Evidence  Rule  747 

practice,  admitting  as  witnesses  the  parties  directly  interested  in  the 
action,  seems  to  add  a  cogent  reason  to  those  existing  at  the  common 
law  for  a  close  adherence  to  the  rule  under  discussion.  If  the  uncer- 
tainty of  'slippery  memory'  furnished  a  ground  for  excluding  such 
verbal  testimony  in  the  days  of  Lord  Coke  (Countess  of  Rutland  v. 
Earl  of  Rutland  (1604),  Coke's  Reports,  part  5,  26a),  how  much 
stronger  reason  for  such  exclusion  today,  when  the  influence  of  self- 
interest  is  so  likely  to  render  the  memory  of  litigating  parties  more 
'slippery'  than  was  that  of  the  witnesses  of  olden  time." 

The  judgment  will  be  reversed,  with  directions  to  the  court  below 
to  sustain  the  demurrer  to  the  evidence. 

All  the  Justices  concurring. 


THOMAS  J.  JENKINS  v.  SPRINGFIELD  REDUCTION  AND 
CHEMICAL  CO.,  and  JOHN  C.  DYSART. 

168  Mo.  App.  5S4.     (1913) 

Sturgis,  J.  The  plaintiff  recovered  judgment  against  the  defendants 
for  the  conversion  of  a  quantity  of  fertilizer  claimed  to  be  his  property. 
The  defendants  justified  the  conversion  by  asserting  their  own  owner- 
ship to  the  same. 

The  dispute  in  this  case  grew  out  of  the  question  whether  or  not  the 
product  in  dispute,  designated  as  fertilizer  in  the  petition,  passed  under 
this  contract  to  the  defendant  corporation  and  became  its  property 
or  whether  it  remained  the  property  of  the  plaintiff. 

The  evidence  shows  that  at  the  time  this  contract  was  entered  into 
there  was  at  the  plant  a  considerable  amount  of  the  finished  product 
in  sack  and  all  parties  agree  that  this  is  fertihzer  and  not  "tankage" 
and  remained  the  property  of  the  plaintiff.  There  was  also  considerable 
amount  of  the  raw  material  or  semi-raw  material,  which  all  parties 
agree  passed  to  the  defendant  under  the  name  of  "tankage".  There 
was  also  in  bins  or  sheds  a  considerable  amount  of  the  product  testified 
to  by  one  witness  as  "ground  tankage"  but  which  had  all  the  ingre- 
dients of  the  finished  product  and  differed  in  no  way  from  the  fertilizer 
in  the  sacks.  All  that  needed  to  be  done  to  put  this  product  on  the 
market  was  to  put  it  in  sacks.  This  is  the  product  that  is  in  dispute 
and  is  claimed  by  the  defendants  to  have  passed  to  the  corporation  as 
"tankage"  or  otherwise  under  the  contract  mentioned  and  become  its 


748  Cases  on  Evidence 

property.  There  is  no  question  but  that  if  this  proiliict  was  the  prop- 
erty of  plaintiff,  then  the  defendants  converted  it  to  its  own  use. 

The  greatest  difficulty  in  this  case  arises  from  the  fact  neither  party 
seems  to  have  tried  it  on  any  definite  theory.  In  the  defendants'  brief 
in  this  court,  it  is  said:  "The  vital  issue  of  fact  in  this  case  was  or 
ought  to  have  been,  whether  the  word  tankage  in  the  said  contract 
was  used  in  its  ordinary  sense,  or  in  its  purportc:!  trade  or  technical 
sense."  If  the  word  has  an  ordinary  and  common  meaning,  then  it 
would  not  be  necessary  or  proper  to  introduce  extrinsic  evidence  to 
show  what  that  meaning  is. 

The  product  now  in  dispute  is  the  mixed  and  complete  product  and 
is  quite  different  from  the  refuse  of  the  tanks  before  mixed  with  other 
ingredients.  Under  this  view  of  the  case  the  judgment  must  be 
affirmed. 

The  writer  of  this  opinion  thinks  that  it  is  but  just  and  fair  to  the 
parties  Htigant,  and  in  order  that  this  opinion  may  not  be  misunder- 
stood, to  say  that  had  the  defendants  tried  the  case  throughout  on  the 
theory  that  the  word  "tankage"  is  necessarily  used  in  this  contract  as 
a  technical  term  that  demands  an  explanation  by  extrinsic  evidence; 
that  the  parties  themselves  agreed  and  understood  at  the  time  and  that 
plaintiff  pointed  out  and  designated  this  loose  product  in  the  bins  as 
being  "tankage"  and  being  sold  under  that  name;  and  that  defendants 
bought  this  product  under  the  name  of  tankage;  then  it  would  have 
been  proper  to  have  admitted  evidence  to  this  effect  and  to  have  left 
it  to  the  jury  under  proper  instructions  to  determine  whether  this  par- 
ticular product  was  or  was  not  included  within  that  term  as  used  in 
the  contract. 

This  case  falls  within  the  class  where  in  an  ordinary  transaction 
an  ambiguous  term  is  used  and  the  parties  are  permitted  to  introduce 
extraneous  evidence  and  circumstances  to  show  its  meaning.  In  regard 
to  such  cases  it  is  said  in  i  Ency.  of  Evidence  837,  838:  "So,  if  the 
previous  negotiation  make  it  manifest  in  what  sense  the  parties  under- 
stood and  used  the  ambiguous  term  in  the  writing,  they  may  be  resorted 
to,  and  indeed,  they  furnish  the  best  definition  to  be  applied  in  ascer- 
taining the  intention  of  the  parties.  Within  the  rule  of  admitting  evi- 
dence of  surrounding  facts  and  circumstances  to  aid  or  explain  an  am- 
biguity, it  has  been  held  proper  to  receive  evidence  or  declarations  of 
the  parties  tending  to  show  what  they  understood  the  ambiguous  term 
or  expression  to  mean."  And  on  page  841,  it  is  further  said,  "Such 
evidence  neither  varies  nor  adds  to  the  writing  but  merely  translates 
'  it  from  the  language  of  the  trade  or  art  in  question,  into  the  ordinary 


Tut  Parol  Evidence;  Rule  749 

language  of  people  generally."     (Gaunt  v.  Pries  &  Co.,  21  Mo.  App. 
540.) 

The  judgment  will  he  affirmed. 


HARMAN  V.  FISHER. 
90  Neb.  688.     (1912) 


Root,  J.  This  is  an  action  in  equity  to  settle  conflicting  claims  to 
a  quarter  section  of  land  in  Furnas  county.  The  case  is  here  on  appeal 
and  cross-appeals. 

A  majority  of  the  court  instructed  me  to  say  that  oral  evidence  is 
admissible  to  prove  the  actual  consideration  for  a  deed,  even  though 
the  effect  may  be  to  convert  the  instrument  from  one  of  bargain  and 
sale  into  one  of  pure  gift;  such  proof  has  always  been  considered  com- 
petent in  other  actions,  and  a  majority  of  the  court  does  not  think 
sound  sense  should  permit  an  exception  to  be  made  in  a  case  where, 
to  do  so,  is  to  compel  the  court  to  hold  contrary  to  the  fact,  and  thereby 
render  ineffectual  a  plain  provision  of  the  statute.  Such  evidence, 
although  admissible,  should  not  be  held  to  prove  the  fact,  unless  it  is 
clear  and  convincing  and  leaves  no  reasonable  doubt  in  the  mind  con- 
cerning the  consideration  given  for  the  deed. 

The  courts  of  last  resort  are  not  in  harmony  in  cases  like  the  one  at 
bar.  The  following  cases  directly  sustain  the  majority  of  this  court : 
Bradley  v.  Love,  60  Tex.  472;  Rockhill  v.  Spraggs,  9  Ind.  30;  Jones 
V.  Jones,  12  Ind.  389;  Kenney  v.  Philipy,  91  Ind.  511.  See,  also,  Sires 
V.  Sires,  43  S.  Car.  266,  and  Salmon  v.  Wilson,  41  Cal.  595. 

The  writer  of  this  opinion,  while  recording  the  views  of  a  majority 
of  the  court,  personally  holds  to  the  contrary.  That  is  to  say,  that 
while  for  many  purposes  recitations  in  a  deed  may  not,  even  as  be- 
tween the  parties  and  their  privies,  be  conclusive  evidence  of  the  facts, 
and  the  recitation  of  consideration  is  frequently  held  to  be  solely  prima 
facie  evidence  of  the  fact,  yet  it  seems  to  me  that,  both  upon  reason 
and  the  better  authority,  persons  claiming  under  a  deed  should  not, 
in  the  absence  of  fraud,  or  mutual  mistake,  be  permitted  to  prove  by 
oral  evidence  that  a  recitation  of  a  substantial,  valuable  consideration, 
where  no  other  consideration  is  referred  to  in  the  deed,  is  false,  and 
prove  by  oral  evidence  that  the  sole  consideration  was  good  so  as 


750  Cases  on  Evidence 

to  change  the  quality  ofjhe  estate  thereby  conveyed.  In  such  cases  the 
recitation  gives  quality  to  the  estate  transferred,  and,  to  contradict  it 
by  oral  evidence,  violates  the  statute  of  frauds  and  perjuries.  Pat- 
terson V.  Lamson,  45  Ohio  St.  'j'j;  Brown  v.  Whaley,  58  Ohio  St.  654; 
Groves  v.  Groves,  65  Ohio  St.  442. 

Among  the  cases  cited  to  sustain  the  majority  of  the  court  Bradley 
V.  Love,  supra,  is  directly  in  point,  but  the  opinion  is  a  mere  declara- 
tion that  the  law  is  as  stated  and  contains  no  convincing  argument  to 
sustain  the  conclusion.  The  later  Indiana  cases  follow  Rockhill  v. 
Spraggs,  9  Ind.  30,  and  it  was  decided  on  the  authority  of  M'Crea  v. 
Purmort,  16  Wend.  (N.  Y.)  460.  The  New  York  case,  however, 
merely  involved  the  right  of  a  party  to  a  deed  to  prove  that  the  con- 
sideration therefor  was  a  quantity  of  iron  delivered  by  the  grantee  to 
the  grantor,  rather  than  a  money  consideration,  as  recited  in  the  deed. 
That  case  was  correctly  determined,  but  does  not  sustain  the  Indiana 
cases,  nor  the  majority  opinion  in  the  instant  case. 

In  Salmon  v.  Wilson,  41  Cal.  595,  in  addition  to  a  recitation  of  a 
nominal  valuable  consideration,  there  was  a  recitation  of  a  good  con- 
sideration,  and  it  was  held  that,  upon  a  consideration  of  the  entire 
instrument,  the  court  should  construe  the  deed  to  be  one  of  gift. 

In  Carty  v.  Connolly,  91  Cal.  15,  that  court  recognize  the  rule  that,, 
in  the  absence  of  fraud,  oral  evidence  should  not  be  received  to  con- 
tradict the  recitation  of  consideration  for  the  purpose  of  defeating  the 
conveyance  according  to  its  terms.  In  the  case  at  bar  the  testimony 
is  convincing  that  the  sole  consideration  for  the  deed  was  that  of  love 
and  affection,  and  we  conclude,  upon  a  consideration  of  the  entire 
record,  that  substantial  justice  has  been  done. 

The  judgment  of  the  district  court,  therefore,  is 

Affirmed 


MARTIN  V.  MASK. 
138  N.  C.  436.     (19 1 2) 


This  action  was  commenced  by  Martin  &  Garrett,  agents,  before  a 
justice  of  the  peace,  to  recover  the*  sum  of  $166.65,  ^^^  interest  on 
$166.65  from  14  December,  1910,  due  by  five  notes  for  $33.33  each, 
given  for  rent  of  house  No.  307  Third  Street,  Augusta,  Ga.,  said  notes 


The  Parol  Evidence  Rule  75 i 

being  due  i  March,  191 1;  i  April,  191 1;  i  May,  191 1;  i  June  191 1; 
and  I  July,  191 1. 

The  defendant  denied  any  liability  to  the  plaintiffs. 

Judgment  was  rendered  by  the  justice  in  favor  of  the  defendant, 
and  the  plaintiff  appealed. 

In  the  Superior  Court  the  defendant  moved  to  dismiss  the  action  on 
the  ground  that  it  appeared  upon  the  face  of  the  summons  and  also 
from  the  notes  that  the  plaintiffs  were  agents,  and  that  the  action 
should  have  been  brought  in  the  name  of  their  principal,  the  real  party 
in  interest. 

The  motion  was  denied,  and  the  defendant  excepted.  The  defendant 
offered  to  prove  that  he  was,  at  the  time  of  making  said  contract,  the 
agent  of  the  Metropolitan  Life  Insurance  Company,  and  he  did  not 
know  how  long  he  would  reside  in  the  city  of  Augusta,  his  residence 
there  being  entirely  dependent  upon  his  employment  by  the  company 
at  that  point;  and  in  consequence  thereof  there  was  a  separate  and 
distinct  contract  made  with  the  plaintiffs  at  the  time  of  the  signing  of 
the  said  notes,  by  which  it  was  agreed  and  understood  that  the  de- 
fendant would  pay  said  notes  which  were  given  for  the  house  in  which 
he  was  to  reside  and  did  reside  during  his  stay  in  Augusta,  but  that 
if  he  was  required  to  leave  the  city  of  Augusta,  that  he  was  to  pay 
no  other  note,  and  that  he  would  surrender  the  possession  of  the  house 
to  the  plaintiffs.  That,  in  accordance  with  the  contract,  the  defendant 
did  pay  to  the  plaintiffs  the  rent  on  said  house  during  his  stay  in 
Augusta. 

That  under  instructions  from  his  employer,  he  left  Augusta  during 
the  month  of  January,  191 1,  and  paid  the  plaintiff  the  note  that  was 
due  I  February,  191 1,  for  the  rent  of  said  house  for  the  month  of 
January,  191 1,  and  delivered  the  possession  of  said  house  and  lot  to 
the  plaintiffs,  and  that  the  plaintiffs,  took  possession  of  and  rented  said 
house  out  to  other  parties.  That  by  reason  of  said  contract  the  said 
notes  sued  on,  all  being  given  for  the  rent  of  the  house  for  months 
subsequent  to  i  February,  191 1,  were  not  to  be  paid,  and  the  defend- 
ant was  under  no  obligation  on  said  notes  to  the  plaintiffs  or  their 
principal. 

This  evidence  was  excluded,  and  the  defendant  excepted.  There 
was  judgment  in  favor  of  the  plaintiffs,  and  the  defendant  excepted 
and  appealed, 

Allen,  J.    The  record  presents  two  questions : 

I.  Was  it  error  to  refuse  to  dismiss  the  action  because  the  plain- 
tiffs are  named  as  agents,  and  sue  on  notes  payable  to  them  as  agents? 


752  Cases  on  Evidence 

2.     Was  it  error  to  exclude  the  evidence  offered  by  the  defendant? 

The  evidence  offered  by  the  defendant  was,  in  our  opinion,  clearly 
competent,  and  for  several  reasons : 

(i)  It  tended  to  prove  a  separate  parol  agreement  entered  into  at 
the  time  of  the  execution  of  the  notes,  which  was  to  be  a  part  of  the 
contract,  and  which  is  not  distinguishable  in  principle  from  agreements 
admitted  in  evidence  under  the  authority  of  several  cases  in  our  re- 
ports. • 

In  Braswell  v.  Pope,  82  N.  C.  57,  it  was  held  competent  to  prove  that 
notes  given  for  money  were  to  be  surrendered  upon  the  maker  signing 
a  judgment  and  a  certain  mortgage  as  security  for  the  money. 

In  Pennington  v.  Alexander,  iii  N.  C.  427,  that  "The  maker  of  a 
promissory  note  or  other  similar  instrument,  if  sued  by  the  payee,  may 
show  as  between  them  a  collateral  agreement,  putting  the  payment  upon 
a  contingency. 

In  Evans  v.  Freeman,  142  N.  C,  61,  that  the  maker  of  a  note  for 
the  purchase  money  of  a  stock-feeder  could  prove  by  parol  that  at  the 
time  the  note  was  given  it  was  agreed  that  it  should  be  paid  only  out 
of  the  sales  of  the  stock- feeder,  and  in  Kernodle  v.  Williams,  153  N. 
C.  475,  that  it  was  competent  to  prove  a  parol  agreement  that  the 
children  should  pay  only  so  much  of  notes  given  by  their  father  as  was 
necessary  to  pay  his  debt,  and  that  the  balance  should  be  accounted  for 
as  an  advancement. 

(2)  The  evidence,  if  believed,  proved  a  total  failure  of  considera- 
tion as  to  the  notes  sued  on.    Carrington  v.  Waff,  112  N.  C.  119. 

(3)  If  the  defendant  could  not  avoid  the  payment  of  the  notes, 
it  was  competent  to  prove  that  he  surrendered  the  house  for  the  rent 
of  which  the  notes  were  given,  and  that  the  plaintiffs  accepted  it,  for 
the  purpose  of  charging  the  plaintiffs  with  the  rents. 

For  the  error  pointed  out,  a  new  trial  is  ordered. 

New  trial. 


S.  E.  BOWSER  &  CO.  v.  FOUNTAIN. 

J 28  Minn.  ip8.     (19 13) 

Action  in  the  District  Court  for  Clay  County  to  recover  $162  for 
goods  sold  and  delivered.  The  case  was  tried  before  Nye,  J.,  and  a 
jury  which  returned  a  verdict  in  favor  of  defendants.    From  an  order 


The;  Parol  Evidence  Rule  753 

denying  plaintiff's  motion   for  judgment  notwithstanding  the  verdict 
or  for  a  new  trial,  it  appealed.     Affirmed. 

Hallam^  J.  It  is  an  elementary  proposition  "that  where,  in  the  ab- 
sence of  fraud,  accident  or  mistake,  the  parties  have  deliberately  put 
their  contract  into  a  writing  which  is  complete  in  itself,  and  couched 
in  such  language  as  imports  a  complete  legal  obligation,  it  is  conclu- 
sively presumed  that  they  have  introduced  into  the  written  instrument 
all  material  terms  and  circumstances  relating  thereto."  Wheaton  Rol- 
ler-Mill Co.  V.  John  T.  Noye  Mnfg.  Co.,  66  Minn.  156,  159,  68  N.  W. 

854,  855. 

It  is  also  well  settled  that  "Where  a  contract  is  silent  as  to  the  time 
of  performance,  the  law  implies  that  it  is  to  be  performed  within  a 
reasonable  time;  and,  if  the  contract  be  in  writing,  parol  evidence  of 
an  antecedent  or  contemporaneous  oral  agreement  is  inadmissible  to 
vary  the  construction  to  be  thus  legally  implied  from  the  writing  it- 
self." Liljengren  F.  &  L.  Co.  v.  Mead,  42  Minn.  420,  424,  44  N.  W. 
306,  308. 

Another  rule  equally  well  settled,  however,  is  that,  in  case  of  a  sim- 
ple contract  in  writing,  it  is  competent  to  show  by  parol  that,  notwith- 
standing the  delivery  of  the  writing,  the  parties  intended  and  agreed 
that  it  should  be  operative  as  a  contract  only  upon  the  happening  of  a 
future  contingent  event,  or  the  performance  of  a  condition.  Westman 
V.  Krumweide,  30  Minn.  542;  35  N.  W.  255 ;  Merchants  Exchange  Bank 
V.  Luckow,  37  Minn.  542,  35  N.  W.  434 ;  Smith  v.  Mussetter,  58  Minn. 
159.  59  N.  W.  995;  Mendenhall  v.  Ulrich,  94  Minn.  100,  loi  N,  W. 
1048.  The  purpose  and  effect  of  such  evidence  is  to  prove  a  condition 
precedent  to  the  attachment  of  any  obligation  under  the  written  in- 
strument, but  to  prove  that  no  contract  was  ever  made,  that  its  obliga- 
tion never  commenced.  ' 

We  come  now  to  the  question  whether  there  is  in  this  case  evidence, 
to  submit  to  the  jury,  of  an  agreement  that  the  delivery  of  the  order 
was  conditional,  and  that  it  should  become  operative  only  on  the  hap- 
pening of  a  contingency  or  the  performance  of  a  condition.  We 
think  there  is.  The  testimony  of  the  defendants  was  to  the  effect  that 
plaintiff's  salesman  was  advised  that  defendants  wanted  the  outfit  for 
the  installation  in  a  garage  then  under  construction;  that  they  wanted 
it  delivered  before  the  floor  of  the  garage  was  in,  and  for  that  reason 
wanted  it  within  two,  weeks  time;  that  the  salesman  did  not  know 
whether  he  could  make  delivery  within  that  time  or  not.  He  said  he 
could  do  so  if  he  could  get  the  outfit  in  Minneapolis,  but  that,  if  it 
became  necessary  to  ship  from  Fort  Wayne,  it  would  be  impossible  to 


754  Cases  on  Evidence 

do  so,  and  that  defendants  then  gave  the  written  order  "on  condition 
*  *  *  that  if  he  could  deliver^  the  goods  in  two  weeks'  time,  or 
thereabouts,  it  would  be  a  deal ;  otherwise  it  would  be  thrown  out." 
We  think  this  evidence  was  sufficient  to  sustain  a  finding  that  the  de- 
livery of  the  order  was  conditional  upon  ascertainment  of  the  fact  that 
the  goods  could  be  delivered  in  two  weeks  or  thereabouts. 

Order  affirmed. 


BURKE  V.  DULANEY. 
153  U.  S.  228.     (1893) 


This  action  was  brought  by  the  testator  of  the  appellees,  upon  a 
writing  purporting  to  be  the  promissory  note  of  the  appellant  for  forty- 
three  hundred  and  eight  dollars  and  eighty  cents,  dated  Salt  Lake  City, 
Utah,  August  10,  1883,  ^"d  payable  one  year  after  date,  for  value  re- 
ceived, at  the  bank  of  Wells,  Fargo  &  Co.  in  that  city,  with  interest 
at  the  rate  of  six  per  cent  per  annum  from  date  until  paid. 

The  defendant,  Burke,  denied  his  liability  upon  the  note,  and  at  the 
trial  below  was  sworn  as  a  witness  on  his  own  behalf.  In  support  of 
his  defense,  as  set  forth  in  the  answer  filed  by  him,  he  stated  the  cir- 
cumstances under  which  the  note  was  given.  He  said :  "Mr.  Dulaney 
bought  this  group  of  mines — the  Live  Yankee  and  the  Mary  Ellen.  He 
came  to  the  Walker  House  in  Salt  Lake,  and  wanted  me  to  run  them 
for  him.  I  said  I  would  not  do  it  unless  I  got  a  show  to  get  some  inter- 
est in  the  property."  To  this  testimony  the  plaintiff  objected,  and,  the 
defendant  admitting  that  the  agreement  referred  to  by  him  was  oral,  the 
objection  was  sustained.    To  this  ruling  he  excepted. 

Being  asked  what  he  did  after  giving  the  note  in  suit,  he  answered : 
"I  gave  the  note.  I  worked  on  the  property,  which  was  done  some 
time  in  September ;  worked  the  property  until  March ;  settled  up  all  of 
its  debts,  paid  them,  notified  Dulaney  I  wanted  nothing  more  to  do 
with  the  property;  that  I  was  going  to  Idaho  Territory,  to  Coeur  d' 
Alene  mines,  and  as  I  was  ready  to  give  him  a  deed  at  any  time  he 
would  send  me  my  note.  That  is  all."  Objection  being  made  by  the 
plaintiffs  to  this  testimony,  the  defendant  offered  to  prove  "that  at  the 
time  of  the  giving  of  the  note  and  prior  thereto,  Dulaney,  the  payee 
of  the  note,  agreed  with  Mr.  Burke,  the  maker  of  the  note,  that  the 
note  should  be  given  to  represent  the  price  of  the  interest  that  Mr. 


/ 

Thf.  Paroi,  Evidence  Rule  755 

Burke  was  to  have,  conditioned  upon  his  demanding  it  after  an  in- 
spection of  the  mining  property  mentioned."  He  offered  also  to  prove 
that  after  inspecting  the  property  and  testing  it,  the  defendant  notified 
testator  that  he  did  not  want  the  interest;  that  he  was  prepared  to 
make  a  deed  for  the  interest  to  the  latter,  and  demanded  the  delivery 
of  his  note.  All  this  evidence  was  excluded  by  the  court  upon  motion 
of  the  plaintiffs,  to  which  ruling  the  defendant  excepted. 

The  defendant  having  stated  that  the  conversation  with  the  testator 
above  referred  to,  and  which  was  excluded  by  the  court,  took  place 
prior  to  the  execution  of  the  note,  he  offered  to  prove  that  at  the  time 
the  note  was  made,  the  same  agreement  was  made  orally  between  him 
and  the  testator.    This  testimony  was  also  excluded,  and  he  excepted. 

Mr.  Justice  Harlan,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  general  rule  that  a  written  contract  cannot  be  contradicted  or 
varied  by  evidence  of  an  oral  agreement  between  the  parties  before 
or  at  the  time  of  such  contract,  has  been  often  recognized  and  applied 
by  this  court,  especially  in  cases  in  which  it  was  sought  to  deprive 
bona  fide  holders  of  or  parties  to  negotiable  securities  of  the  rights  to 
which  they  were  entitled  according  to  the  legal  import  of  the  terms  of 
such  instruments.  Renner  v.  Bank  of  Columbia,  9  Wheat.  576,  587 ; 
Brown  v.  Wiley,  20  How.  442;  Specht  v,  Howard,  16  Wall.  564;  For- 
sythe  V.  Kimball,  91  U.  S.  291 ;  Brown  v.  Spofford,  95  U.  S.  474'; 
Martin  v.  Cole,  104  U,  S.  30;  Burnes  v.  Scott,  117  U.  S.  582;  Falk  v. 
Moebs,  127  U.  S.  597. 

The  authorities  cited  do  not  determine  the  present  case.  The  issue 
here  is  between  the  original  parties  to  the  note.  And  the  evidence 
offered  by  the  appellant,  and  excluded  by  the  court,  did  not  in  any 
true  sense  contradict  the  terms  of  the  writing  in  suit,  nor  vary  their 
legal  import,  but  tended  to  show  that  the  written  instrument  was  never, 
in  fact,  delivered  as  a  present  contract,  unconditionally  binding  upon 
the  obligor  according  to  its  terms  from  the  time  of  such  delivery,  but 
was  left  in  the  hands  of  Dulaney,  to  become  an  absolute  obligation  of 
the  maker  in  the  event  of  his  electing,  upon  examination  or  investiga- 
tion, to  take  the  stipulated  interest  in  the  property  in  question.  In 
other  words,  according  to  the  evidence  offered  and  excluded,  the  writ- 
ten instrument,  upon  which  this  suit  is  based,  was  not — except  in  a 
named  contingency — to  become  a  contract,  or  a  promissory  note  which 
the  payee  could  at  any  time  rightfully  transfer.  Evidence  of  such  an 
oral  agreement  would  show  that  the  contingency  never  happened,  and 
would  not  be  in  contradiction  of  the  writing.     It  would  prove  that 


756  Cases  on  Evidence 

there  never  was  any  concluded,  binding  contract  entitling  the  party  who 
claimed  the  benefit  of  it  to  enforce  its  stipulations.  The  rule  that  ex- 
cludes parol  evidence  in  contradiction  of  a  written  agreement  presup- 
poses the  existence  in  fact  of  such  agreement  at  the  time  suit  is  brought. 
But  the  rule  has  no  application  if  the  writing  was  not  delivered  as  a 
present  contract.  The  authorities  supporting  these  views  are  numerous. 
The  judgment  is  reversed  and  the  cause  is  remanded,  that  a  new  trial 
may  be  ordered,  and  further  proceedings  had  in  conformity  with  this 
opinion. 


JAMESTOWN  BUSINESS  COLLEGE- ASSN.  v.  ALLEN. 
IJ2  N.  Y .  2^1.     (1902) 

Werner,  J.  Under  the  unanimous  affirmance  by  the  Appellate  Divi- 
sion of  the  judgment  entered  upon  the  verdict  of  the  jury  herein,  the 
only  question  presented  by  this  record  that  survives  to  reach  this  court 
is  the  single  exception  taken  by  the  plaintiff  to  the  admission  of  parol 
evidence,  given  by  the  defendant,  in  contradiction  of  the  written  in- 
strument upon  which  the  action  is  founded.  I  think  that  the  excep- 
tion referred  to  was  well  taken.  The  action  is  upon  a  promissory  note. 
The  complaint  is  in  the  usual  form  in  such  actions.  The  answer 
alleges  want  of  consideration  and  an  agreement  that  the  note  was  not 
to  be  paid  if  the  defendant  did  not  take  the  course  of  instruction  at 
plaintiff's  school,  for  which  the  note  was  given.  Upon  the  trial,  under 
these  pleadings,  the  plaintiff  introduced  the  note  in  evidence  and  rested 
its  case.  Thereupon  the  defendant,  under  the  direction  of  the  court, 
assumed  the  affirmative  of  the  issue  and  introduced  evidence  in  sup- 
port of  the  allegations  of  her  answer.  Despite  plaintiff's  objection  to 
any  oral  testimony  tending  to  vary  or  contradict  the  written  instru- 
ment, the  defendant  was  permitted  to  testify  that  the  note  in  suit  was 
not  to  be  paid  if  she  should  decide  not  to  attend  plaintiff's  school  and 
could  not  sell  her  scholarship,  I  think  this  ruling  of  the  trial  court 
was  erroneous,  and  that  the  exception  requires  a  reversal  of  this  judg- 
ment. 

The  general  rule,  that  evidence  of  what  was  said  between  the  parties 
to  a  valid  instrument  in  writing,  either  prior  to  or  at  the  time  of  its 
execution,  cannot  be  received  to  contradict  or  vary  its  terms,  applies 
to  promissory  notes  and  bills  of  exchange.     (Thompson  v.  Ketcham, 


The  Paroi,  Evidence  Rur,E  757 

8  Johns,  190;  Norton  v.  Coons,  6  N.  Y.  33;  Read  v.  Bank  of  Atticc, 
124  N.  Y.  671.) 

As  stated  in  Thomas  v.  Scutt  (127  N.  Y.  133)  and  Stowell  v.  Green- 
wich Ins.  Co.  (163  N.  Y.  305),  there  are  two  classes  of  exceptions  to 
this  general  rule  of  evidence.  The  first  class  includes  those  cases  in 
which  parol  evidence  is  received  to  show  that  a  written  instrument 
which  purports  to  be  a  contract  is  in  fact  no  contract  at  all.  The 
other  class  "embraces  those  cases  which  recognize  the  instrument  as 
existing  and  valid,  but  regard  it  as  incomplete,  either  obviously  or  at 
least  possibly,  and  admit  parol  evidence,  not  to  contradict  or  vary,  but 
to  complete  the  entire  agreement  of  which  the  writing  was  only  a  part. 
Receipts,  bills  of  parcels  and  writings  that  evidently  express  only  some 
parts  of  the  agreement  are  examples  of  this  class  which  leaves  the 
written  contract  unchanged,  but  treats  it  as  part  of  an  entire  oral  agree- 
ment, the  remainder  of  which  was  not  reduced  to  writing.  Two  things, 
however,  are  essential  to  bring  a  case  within  this  class :  i .  The  writ- 
ing must  not  appear  upon  inspection  to  be  a  complete  contract,  em- 
bracing all  the  particulars  necessary  to  make  a  perfect  agreement  and 
designed  to  express  the  whole  arrangement  between  the  parties,  for  in 
such  a  case  it  is  conclusively  presumed  to  embrace  the  entire  contract. 
2.  The  parol  evidence  must  be  consistent  with  and  not  contradictory 
of  the  written  instrument." 

I  think  the  case  at  bar  does  not  fall  within  either  of  these  excep- 
tions. In  form,  the  instrument  sued  upon  is  a  complete  contract.  This 
is  equally  true  as  regards  the  note  alone,  or  the  note  and  the  certificate 
of  scholarship  together  considered  as  parts  of  the  same  contract.  If  it 
is  a  contract  at  all,  it  is  a  complete  contract.  The  oral  evidence  re- 
ceived over  plaintiff's  objection  did  not  serve  to  amplify  or  complete  the 
writing;  it  was  radically  contradictory  thereof.  The  mere  statement  of 
this  fact  is  the  only  argument  necessary  to  show  that  the  case  is  not 
in  the  class  of  cases  in  which  oral  testimony  is  received  to  complete 
contracts  which  are  only  partly  reduced  to  writing.  Does  the  oral 
testimony  received  over  plaintiff's  objection  tend  to  show  that  the  writ- 
ten instrument,  which  was  a  complete  contract  in  form,  was  in  fact 
no  contract?  This  question  suggests  the  distinction  between  this  case 
and  the  cases  upon  which  the  defendant  relies.  According  to  the  testi- 
mony of  the  defendant  the  delivery  of  the  note  in  suit  was  not  condi- 
tional upon  the  happening  of  some  event  before  it  was  to  become  a 
binding  obligation;  on  the  contrary,  it  is  said  to  have  been  complete 
and  unconditional.  The  defendant  says,  in  substance,  that  the  note 
became  effective  at  once  and  was  to  be  binding  upon  her  unless  she 


758  Case;s  on  Evidejnce 

should  decide  not  to  take  instructions  at  plaintiff's  school  and  could  not 
sell  her  scholarship,  in  which  event  it  was  to  be  canceled  and  she  was 
not  to  be  called  upon  to  pay  it.  Had  the  parties  agreed  that  the  note 
should  not  be  regarded  as  completely  delivered  until  the  defendant 
should  take  such  instructions,  or  until  she  could  sell  her  scholarship, 
it  would  not  have  become  operative  until  either  of  these  events  had 
transpired.  The  agreement  which  the  parties  did  make  was  just  the 
reverse  of  that.  The  note  is  stated  to  have  been  actually  and  uncondi- 
tionally delivered,  and  was  to  be  and  remain  a  note  until  the  defendant 
should  decide  either  to  sell  the  scholarship,  if  that  were  possible,  or 
to  abandon  the  projected  course  of  instruction.  As  the  note  was  not 
payable  until  a  year  after  its  date,  and  the  course  of  instruction  was 
not  to  begin  until  the  note  became  due,  the  defendant's  claim  is,  in 
reality,  an  assertion  that  the  note  was  to  be  regarded  as  a  valid  and 
binding  obligation  until  it  became  due,  when  it  was  to  be  optional  with 
the  defendant  to  decide  whether  it  should  then  be  payable  or  not.  This 
was  not  a  conditional  delivery  which  held  the  consummation  of  the  con- 
tract in  abeyance,  but  an  absolute  delivery  which,  as  the  defendant  sup- 
posed, could  be  annulled  in  a  certain  contingency  at  her  option.  It  is 
obvious,  therefore,  that  there  is  a  radical  distinction  between  a  condi- 
tional delivery,  which  is  not  to  become  complete  and  effective  until  the 
happening  of  some  condition  precedent,  and  a  complete  delivery,  like 
the  one  at  bar,  which  is  sought  to  be  defeated  by  subsequent  contin- 
gencies that  may  or  may  not  arise.  In  the  one  case  there  is  no  con- 
tract until  the  condition  has  been  complied  with;  in  the  other  there 
is  a  binding  contract,  notwithstanding  the  happening  of  the  contingency 
relied  upon  to  defeat  it.  For  the  foregoing  reasons  the  cases  of  Sey- 
mour V.  Cowing,  (i  Keyes,  532)  ;  Reynolds  v.  Robinson,  (no  N.  Y. 
654)  ;  Blewitt  v.  Boorum,  (142  N.  Y.  357)  ;  Higgins  v.  Ridgway,  (153 
N.  Y.  130),  and  kindred  cases,  holding  that  conditions  limiting  and  cir- 
cumscribing the  delivery  of  written  instruments  may  be  shown  by  parol, 
are  not  applicable  to  the  case  at  bar. 

This  case  seems  to  fall  directly  within  the  principle  "that  parol  evi- 
dence of  an  oral  agreement  made  at  the  time  of  the  drawing,  making 
or  indorsing  of  a  bill  or  note,  cannot  be  permitted  to  vary,  qualify  or 
contradict,  to  add  or  to  subtract  from  the  absolute  terms  of  the  written 
contract."  (Specht  v.  Howard,  16  Wall.  564;  Forsyth  v.  Kimball,  91 
U.  S.  291 ;  Brown  v.  Wiley,  61  U.  S.  442 ;  Brown  v.  Spafford,  95  U. 
S.  474;  Read  v.  Bank  of  Attica,  124  N.  Y.  671.) 

For  these  reasons  I  think  the  parol  evidence  above  referred  to  was 


The  Parol  Evidence  Rule  759 

erroneously  admitted,  and,  therefore,  the  judgment  herein  should  be 
reversed  and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

Judgment  reversed,  etc. 


^^^iTv^A     QUARRY  CO.  V.  CLEMENTS. 
38  Ohio  587.     (1883) 

So  far  as  necessary  to  present  the  point  reserved  for  decision  the 
following  is  a  statement  of  the  facts : 

The  action  below  was  brought  by  The  Baldwin  Quarry  Co.,  the  pres- 
ent plaintiff,  against  Robert  J.  Clements,  defendant,  to  recover  a  bal- 
ance due  for  stone  furnished  for  and  used  in  the  construction  of  a 
bridge  by  defendant  for  Cuyahoga  county.  The  contract  was  in  writ- 
ing, and  stipulated  "That  said  party  of  the  second  part  agrees  to  fur- 
nish to  the  said  party  of  the  first  part,  good  bridge  stone  at  $4.50  per 
perch,  to  be  measured  in  the  wall.  And  said  party  of  the  second  part 
agrees  to  furnish  to  said  party  of  the  first  part,  perch  stone  at  $1.50 
per  perch,  to  be  measured  in  the  wall.  The  above  described  stone  is 
to  be  used  in  the  erction  and  building  of  a  bridge  or  culvert  to  be  built 
on  Columbus  Street,  at  or  over  the  stream  known  as  Big  Creek,  and 
said  stone  is  to  be  delivered  on  the  ground  where  said  bridge  or  culvert 
is  to  be  built,  at  the  above  price."  The  defendant  pleaded  that  he  did 
not  owe,  etc.  The  case  was  tried  to  a  jury  and  resulted  in  a  verdict 
and  judgment  for  plaintiff.  The  district  court  reversed  the  judgment 
for  error  in  rejecting  certain  evidence  offered  by  defendant.  The 
amount  due  plaintiff  turned  on  the  meaning  of  the  word  perch,  as  used 
in  said  contract.  The  plaintiff,  on  the  trial,  for  the  purpose  of  making 
good  his  claim,  offered  evidence  tending  to  show  that  by  the  usage  of 
the  business,  165^  cubic  feet  was  a  perch,  while  the  defendant,  for  a 
like  purpose,  offered  evidence  that  by  such  usage  25  feet  made  a 
perch.  The  weight  of  this  evidence  was,  in'  substance,  that  in  small 
jobs,  such  as  cellar  walls  and  foundations,  in  Cleveland  and  vicinity, 
the  usage  was  to  count  i6j^  feet  to  the  perch,  while  in  all  railroad 
masonry  it  took  25  feet.  As  to  bridge  masonry,  such  as  this  was,  the 
evidence  failed  to  show  that  there  was  any  fixed  or  definite  meaning 
to  the  word,  or  any  uniform  usage  as  to  the  quantity  of  stone  it  took 
to  make  a  perch.  The  effect  of  this  testimony  was  that  the  term  perch 
was  ambiguous,  and,  as  applied  to  this  kind  of  work,  might  mean  16^ 


760  Cases  on  Evidence 

feet  or  25  feet  indifferently.  In  this  state  of  the  proof,  and  for  the 
purpose  of  showing  what  the  parties  really  intended  by  the  use  of  this 
term,  the  defendant  offered  to  prove  the  conversation  of  the  parties 
at  and  before  the  contract  was  reduced  to  writing  and  signed,  which 
resulted  in  a  verbal  agreement  as  to  the  terms  of  the  contract,  and 
their  instructions  to  the  attorney,  who,  at  their  instance,  reduced  the 
same  to  writing,  in  which  of  the  two  sehses  the  word  perch  was  used. 
He  offered  to  show  that  the  verbal  agreement  was  for  18  cents  per 
cubic  foot,  and  that  Graves,  the  attorney  by  whom  it  was  reduced  to 
writing,  of  his  own  motion,  and  without  instructions  from  either  party, 
inserted  "$4.50  per  perch"  instead  of  18  cents  per  cubic  foot,  which 
is  the  same  price  if  25  feet  be  counted  as  a  perch. 

This  testimony  was  rejected.    The  district  court  held  this  was  error, 

Johnson,  J.  The  evidence  of  usage  failed  to  show  that  either  six- 
teen and  one-half  or  twenty-five  cubic  feet  made  a  perch,  in  this  class 
of  work.  It  left  the  meaning  of  the  term  perch  ambiguous  and  uncer- 
tain. In  this  state  of  the  proof,  the  defendant  offered  to  prove  that 
the  word  perch  was  not  used  by  either  of  them,  and  that  the  parties 
verbally  agreed  on  18  cents  per  cubic  foot  as  the  price  of  the  stone, 
and  that  the  attorney  employed  to  reduce  the  contract  to  writing,  of  his 
own  motion,  and  without  instruction  from  either  party,  made  the 
change  from  feet  to  perch,  and  the  price  from  18  cents  per  cubic  foot 
to  $4.50  per  perch,  this  being  at  the  same  rate,  if  twenty-five  feet  is  a 
perch,  but  if  sixteen  and  one-half  feet  is  a  perch,  then  the  price  per 
cubic  foot  would  be  over  twenty-seven  cents. 

In  determining  the  question  presented,  we  can  derive  little  or  no  aid 
from  the  cases  where  custom  or  usage  is  shown,  to  enable  the  court 
to  interpret  the  meaning  of  doubtful  or  ambiguous  words,  or  of  words 
or  terms  that  have  a  special,  technical  or  peculiar  meaning,  as  applied 
to  particular  kinds  of  trade  or  business.  Hence  it  is  not  necessary  to 
cite  or  comment  on  this  class  of  cases.  The  rule  which  admits  this 
kind  of  testimony  is  not  at  variance  with  the  other  general  rule,  that 
parol  contemporaneous  evidence  is  not  competent  to  modify  or  contra- 
dict the  terms  of  a  written  contract.  The  object  of  evidence  of  such 
usage  is  not  to  vary  or  modify  the  writing,  but  to  ascertain  "its  mean- 
ing, when  words  and  terms  are  used  which  are  ambiguous,  or  have  a 
technical  or  particular  signification  when  applied  to  the  subject  matter. 

In  the  present  case,  the  claim  is,  that  the  rejected  evidence  was  not 
offered  to  vary,  modify  or  contradict,  the  terms  of  the  contract,  but,  as 
the  evidence  of  usage  in  the  business  left  the  word  used  ambiguous, 
it  was  proper  to  show  in  what  sense  the  parties  used  it.     When  that 


Thb  Paroi,  EVmENCB  Rule  761 

is  ascertained,  the  contract  has  a  definite  meaning,  and  its  terms,  as 
construed  in  the  light  of  this  evidence  constitute  the  measure  of  obliga- 
tion. The  reason  why  usage  is  resorted  to  is  to  ascertain,  not  to  vary, 
the  intention  of  the  parties,  inasmuch  as  they  are  presumed  to  have 
contracted  with  reference  to  the  known  usage  of  the  business.  For 
the  purpose  for  which  this  rejected  evidence  was  offered,  we  think  it 
was  competent.  The  parties  used  a  word  employed  in  the  kind  of 
business  in  which  they  were  engaged.  As  applied  to  this  kind  of  work, 
it  had  no  general  meaning  nor  any  fixed  technical  meaning. 

The  object  was  not  to  vary,  but  to  develop  the  meaning  of  the  con- 
tract, by  ascertaining  the  sense  in  which  this  word  was  intended  to 
be  used.  Numerous  text  books  and  cases  could  be  cited  illustrating 
this  rule  and  its  proper  limitations.  Thus,  where  the  defendant's  agent, 
by  letter,  offered  to  purchase  plaintiff's  wool.  In  the  correspondence 
the  offer  was  in  terms  to  purchase  "your  wool."  Evidence  of  previous 
conversations  between  the  parties  was  admitted,  showing  that  the  plain- 
tiff had  some  wool,  of  his  own  clip,  and  some  he  had  purchased,  which 
he  was  offering  for  sale.  The  object  of  this  evidence  was  to  show  in 
what  sense  the  defendant  used  the  term  "your  wool",  by  showing,  by 
their  previous  negotiations,  that  at  the  time  the  offer  by  letter  was 
made,  he  did  not  refer  to  the  wool  from  plaintiff's  clip  merely,  but  to 
all  the  seller  had  on  hand.  Lord  Campbell  says:  "There  cannot  be 
the  slightest  objection  to  the  admission  of  evidence  of  previous  con- 
versations, which  neither  alters  nor  adds  to  the  written  contract,  but 
merely  enables  us  to  ascertain  what  was  the  subject  matter  referred 
to  therein."  There  the  subject  matter,  as  was  shown  by  extrinsic  evi- 
dence, was  uncertain,  and  oral  evidence  was  admitted  to  fix  or  ascer- 
tain the  meaning  of  the  term  "your  wool".  McDonald  v.  Longbottom, 
102  Eng.  Com.  Law.  977. 

So  where  there  was  a  sale,  by  written  contract,  of  "winter  strained 
lamp  oil",  equal  to  a  sample  exhibited,  the  proof  showed  there  were 
two  kinds  of  such  oil:  one  sperm  oil,  the  other  whale  oil,  the  latter  of 
which  was  inferior  in  quaHty.  Evidence  was  held  admissible  to  show 
that,  in  conversation  at  the  time  the  contract  was  made,  this  was  ex- 
plained to  the  purchaser,  and  that  he  was  then  informed  that  it  was 
not  sperm  oil  he  was  selling.    Hart  v.  Hammett,  18  Vt.  127. 

In  a  contract  made  in  Alabama  during  the  rebellion,  to  pay  "dol- 
lars", parol  evidence  was  admitted  showing  the  circumstances  under 
which  the  contract  was  made,  and  that,  in  fact,  at  the  time  and  place, 
the  only  dollars  in  use  were  Confederate  dollars.  Thorington  v.  Smith, 
8  Wall.  I. 


762  Cases  on  Evidence 

In  the  charter  of  the  whole  tonnage  of  a  vessel,  except  necessary 
quarters  for  the  officers  and  crew  and  storage  of  provisions,  water  and 
fuel,  proof  of  conversations  between  the  parties,  when  in  negotiations 
in  relation  to  the  excepted  parts  required  for  use  by  the  officers  and 
crew  was  properly  admitted,  as  it  did  not  tend  to  vary  or  contradict 
the  written  contract,  but  only  to  point  out  the  subject  to  which  it  ap- 
plied. Almgren  v.  Dulith,  i  N.  Y,  28.  Without  extending  quotations, 
we  add  a  few  authorities  where  this  principle  is  adhered  to :  Shore  v. 
Wilson,  9  CI.  &  F.  555;  Barret  v.  Stow,  15  111.  423;  Gray  v.  Harper, 

I  Story  574 ;  Brown  v.  Brown,  8  Met.  576 ;  Attorney  General  v.  Shore, 

II  Sim.  592-632;  Wharton  on  Evidence,  par.  938-943;  Stoops  v.  Smith, 
100  Mass.  63;  Miller  v.  Stevens,  Ibid.  518;  Sweet  v.  Shumway,  102 
Mass.  367. 

So  in  a  contract  for  "ware  potatoes",  where  on  the  trial  it  appeared 
there  were  two  kinds  of  "ware  potatoes"  known  in  the  market  one  in- 
ferior to  the  other,  parol  evidence  to  show  that  the  contract  was  in 
fact,  for  the  best,  was  admissible,  for  the  reason,  as  we  suppose,  that  by 
the  terms  of  the  contract  the  seller  was  not  limited  to  a  delivery  of 
that  kind,  which  was  of  best  quality,  if  the  inferior  kind  was  within 
the  term  "ware  potatoes",  and  therefore  the  evidence  went  to  vary 
the  written  contract.     Smith  v.  Jeffries,  15  Mees.  &  W.  561. 

If  books  are  referred  to,  they  furnish  no  certain  guide.  Webster 
says  16^  feet  make  a  perch.  Worcester  gives  no  definition  in  cubic 
measure.  The  New  American  Encyclopaedia  says  25  feet.  In  some 
arithmetics  16^  feet,  in  others  25  feet,  while  in  others  again  24^ 
feet,  are  given  as  a  perch.  In  Haswell's  Engineers  &  Mechanics'  Book 
— a.  leading  authority  on  the  subject,  and  one  in  general  use — 24^  feet 
are  given  as  a  perch  of  stone.  In  this  state  of  doubt  and  uncertainty, 
and  in  the  absence  of  an  express  statutory  definition,  we  hold  that  the 
rejected  testimony  was  admissible,  to  show  in  what  sense  the  word  was 
used  in  the  written  contract.  It  does  not  tend  to  vary  the  terms  of  the 
writing.  It  simply  enables  the  court  to  ascertain  what  its  terms  mean, 
and  to  construe  and  enforce  it  as  the  parties  intended.  It  is  proper 
to  add  that  it  does  not  appear  that  the  error,  in  rejecting  this  evidence, 
was  cured  by  the  verdict. 

The  judgment  of  the  District  Court  is  affirmed. 


Thi5  Paroi.  Evidence  Rui.E  763 

COLONIAL  JEWELRY  CO.  v.  BROWN  et  al. 
38  Okla.  44.     (1913) 

Kane,  J.  This  was  an  action  commenced  by  the  plaintiff  in  error, 
plaintiff  below,  against  the  defendants  in  error,  defendants  below,  upon 
a  jewelry  contract  or  order.  At  the  commencement  of  the  action,  an 
order  of  attachment  was  issued  upon  an  affidavit  of  the  plaintiff,  to  the 
effect  that  the  defendants  were  attempting  to  dispose  of  and  other- 
wise conceal  their  property  with  intent  to  hinder  and  delay  plaintiff 
in  collecting  its  debt,  and  was  otherwise  violating  the  Bulk  Sales  Law 
of  the  state  of  Oklahoma,  Comp.  Law  1909,  sees.  7908-7910  (Rev. 
Laws  1910,  sees.  2903-2905).  The  defendants  admitted  the  execution 
of  the  contract  sued  upon,  but  alleged  that  the  same  was  placed  into  the 
hands  of  the  defendants  under  an  agreement,  whereby  it  was  not  to  be- 
come effective  until  five  days  after  its  execution,  during  which  time 
the  defendants  were  at  liberty  to  cancel  the  order.  They  further 
alleged  that  the  goods  were  shipped  before  the  expiration  of  the  five 
days,  notwithstanding  the  defendants  in  the  meantime  had  notified  the 
plaintiff  that  they  did  not  want  the  goods  described  in  the  order,  and 
requested  it  to  cancel  the  same.  They  further  alleged  that  they  had 
in  no  way  violated  the  Bulk  Sales  Law  of  the  state  of  Oklahoma  and 
that  no  grounds  for  attachment  existed,  and  that  by  reason  of  the 
wrongful  suing  out  of  the  same  they  had  been  damaged  in  the  sum  of 
$500.  Upon  a  trial  to  a  jury  upon  the  merits,  a  verdict  was  returned 
for  the  defendants  in  the  sum  of  $100  and  the  dissolution  of  the  at- 
tachment, upon  which  judgment  was  duly  entered,  to  reverse  which  this 
proceeding  in  error  was  commenced. 

Counsel  for  plaintiff  in  error  presents  his  grounds  for  reversal  under 
three  heads,  as  follows : 

"(i)  The  trial  court  erred  when  it  permitted  defendants  to  intro- 
duce parol  evidence  to  contradict  and  vary  the  terms  of  a  written  con- 
tract, by  which  evidence  a  verbal  agreement  was  shown  different  from 
the  written,  but  not  incorporated  therein,  and  made  prior  to  and  con- 
temporaneous with  the  written  instrument.  (2)  The  trial  court  erred 
in  giving  the  instructions  that  were  given.  (3)  The  trial  court  erred 
in  refusing  to  give  the  special  instructions  asked  for  by  the  plaintiff." 

Counsel  states  his  position  in  his  brief  in  effect  as  follows : 

When  defendants  signed  the  contract  sued  upon,  the  same  became 
and  was  a  binding  obligation,  and  was  not  subject  to  countermand, 
especially  after  the  order  had  been  received  and  the  goods  delivered 


764  Cases  on  Evidence 

to  an  express  company  for  delivery  to  defendants  as  per  order ;  and 
defendants  are  estopped  from  setting  up  a  different  verbal  agreement 
made  prior  to  and  contemporaneous  with  the  written  contract,  whereby 
the  contract  was  not  to  take  effect  until  the  member  of  the  partnership 
who  signed  the  same  and  could  see  the  other  partner  and  discuss  with 
him  the  deal,  and  parol  testimony  tending  to  prove  said  agreement  was 
unquestionably  inadmissible,  and  this  one  proposition,  involves  the  whole 
case. 

We  do  not  understand  that  evidence  offered  for  the  purpose  of  show- 
ing that  a  written  instrument  was  delivered  conditionally  constitutes 
contradicting  or  varying  a  written  instrument  by  parol.  Such  evidence 
does  not  tend  to  show  any  modification  or  alteration  of  the  written 
agreement,  but  that  it  never  became  operative,  and  that  its  obligation 
never  commenced.  A  written  contract  must  be  in  force  to  make  it 
subject  to  the  parol  evidence  rule. 

Such  a  contract  cannot  become  a  binding  obligation  until  it  has  been 
delivered.  Its  delivery  may  be  absolute  or  conditional.  If  the  latter, 
then  it  does  not  become  a  binding  obligation  until  the  condition  upon 
which  its  delivery  depends  has  been  fulfilled.  Tovera  v.  Parker,  34 
Okla.  74,  128  Pac.  loi ;  Horton  v.  Birdsong,  35  Okla.  275,  129  Pac. 
701.    In  Lions  v.  Stills,  97  Tenn.  514,  ^iJ  S.  W.  280,  it  was  held: 

"When  an  unconditional  note  is  given  for  the  purchase  of  certain 
property,  parol  evidence  is  admissible  to  show  an  option  on  the  part 
of  the  purchaser  to  rescind  the  sale  within  a  certain  time,  as  this  does 
not  contradict  the  note,  but  sets  up  an  independent  agreement  made  at 
the  same  time,  that  upon  a  condition  or  contingency  the  note  was  to 
become  void." 

Mr.  Joyce  in  his  Defence  to  Commercial  Paper  (section  312)  makes 
the  distinction  between  the  two  classes  of  cases  very  clear : 

"No  rule  is  more  elementary  than  that  parol  contemporaneous  evi- 
dence is  inadmissible  to  contradict  or  vary  the  terms  of  a  written  in- 
stnmient.  But  the  rule  is  almost  equally  well  settled  that  parol  evidence 
may  be  given  to  prove  the  existence  of  any  separate  parol  agreement 
constituting  a  condition  precedent  to  the  attaching  of  any  obligation 
under  the  written  instrument.  This  is  not  to  vary  or  contradict  a  writ- 
ten instrument,  but  to  prove  that  no  contract  was  ever  made;  that  its 
obligations  never  commenced." 

As  the  instructions  refused  and  given  are  objected  to  upon  the 
theory  that  the  first  contention  of  plaintiff  in  error  is  correct,  what 
we  have  already  said  disposed  of  such  assignments  of  error.  Counsel 
for    plaintiff    in    error    in    conclusion    says    that    "we    submit    there 


The  Paroi.  Evidence;  Rule  765 

was  no  evidence  to  sustain  a  verdict  of  $100  against  plaintiff  for  the 
wrongful  suing  out  of  said  attachment."  We  have  examined  the  evi- 
dence, and  are  of  the  opinion  that  it  reasonably  tends  to  support  the 
verdict  of  the  jury. 

The  judgment  of  the  court  below  is  therefore  affirmed. 

All  the  Justices  concur. 


HAPKE  V.  DAVIDSON. 
180  Mich.  ij8.     (1914) 


KuHN^  J.  The  defendant,  James  Davidson,  prior  to  February  20, 
1904,  was  interested  in  a  factory  at  Dresden,  Ontario,  for  the  manufac- 
ture of  beets  into  sugar.  The  operation  of  the  factory  not  being  suc- 
cessful in  that  locality,  he  made  a  contract  with  the  plaintiff,  Theo- 
dore Hapke,  who  was  an  expert  agriculturist,  to  remove  the  same. 

The  issue  thus  formed  being  submitted  to  the  jury,  a  verdict  in  the 
sum  of  $1,917  for  the  plaintiff  was  returned.  Judgment  being  brought 
to  this  court  by  writ  of  error. 

The  circuit  judge  held  and  instructed  the  jury  that  there  could  be  no 
recovery  for  services  performed  or  the  expenditures  made  prior  to  Feb- 
ruary 20,  1904,  for  the  reason  that  all  these  matters  had  merged  in 
the  contract.  The  defendant  offered  in  evidence  certain  correspon- 
dence between  the  parties  prior  to  that  time,  and  also  endeavored  to 
show  conversation  which  took  place  between  the  parties  in  the  office  of 
the  attorney  at  the  time  the  contract  was  made.  In  the  letter  of  Feb- 
ruary 13,  1904,  written  by  the  defendant  to  plaintiff  at  Janesville,  he 
said,  after  discussing  the  removal  of  the  factory  in  question : 

"And  of  course  we  would  also  want  it  distinctly  understood  that  we 
could  not  allow  anything  for  any  promotion,  expenses  or  anything  of 
that  kind." 

It  is  clear  that  the  purpose  of  offering  this  letter  and  a  draft  of  the 
proposed  contract  made  previous  to  the  meeting  in  the  attorney's  office, 
when  the  agreement  was  actually  signed,  was  to  vary  the  terms  of  the 
contract  as  construed  by  the  court,  and  was  an  effort  to  show  that  the 
claimed  items  for  extras  were  intended  to  be  within  the  terms  of  the 
agreement.  The  rulings  of  the  court  in  excluding  these  writings  were 
proper.  It  must  be  assumed  that  the  contract  as  made  was  the  cul- 
mination of  the  negotiations  between  the  parties,  and,  its  terms  not 


766  Cas^s  on  Evideince 

being  ambiguous,  these  writings  were  inadmissible.  Eaton  v.  Gladwell, 
io8  Mich.  678  (66.  N.  W.  598) ;  Mouat  v.  Montague,  122  Mich.  334 
(81  N.  W.  112)  ;  17  Cyc.  p.  596.  The  evidence  of  the  conversation 
had  before  the  contract  was  also  inadmissible.  Cohen  v.  Jackoboice, 
loi  Mich.  409  (59  N.  W.  665) ;  R.  K.  Carter  &  Co.  v.  Weber,  138 
Mich.  576  (loi  N.  W.  818)  ;  Wallace  v.  Kelly,  148  Mich.  336  (iii  N. 
W.  1049,  118  Am.  St.  Rep.  580) ;  International  Text-Book  Co.  v.  Mar- 
vin, 166  Mich.  660  (132  N.  W.  437). 

Reversed  on  another  ground. 


WILLIAM  ENNIS  v.  WILLIAM  D.  WRIGHT. 
^j/  Mass.  40.    (1914) 

Contract  for  the  alleged  breach  by  the  defendant  of  a  contract  in 
writing  dated  August  27,  1910,  by  which  the  defendant,  doing  business 
as  the  Massachusetts  Engraving  Company,  agreed  to  employ  the  plain- 
tiff for  one  year  from  the  date  of  the  contract. 

The  evidence  showed  that  the  plaintiff  worked  under  the  terms  of 
the  contract  until  February  3,  191 1,  when  he  was  discharged  by  the 
defendant,  and  it  was  a  material  issue  in  the  case  whether,  as  the  plain- 
tiff contended,  he  was  discharged  because  he  was  a  union  man  or 
whether,  as  the  defendant  contended,  he  was  discharged  for  miscon- 
duct. 

The  plaintiff  testified  that  he  lived  in  Rochester,  New  York,  up  to 
August  23,  1910;  that  he  had  a  letter  from  the  defendant  in  regard 
to  coming  to  Boston  and  entering  the  employ  of  the  defendant  in  July, 
1910;  and  that  after  the  receipt  of  this  letter  one  Hickman  called  upon 
him.  He  was  asked,  "Well,  what  did  Mr.  Hickman  say?"  The  ques- 
tion was  objected  to,  and,  for  the  purpose  of  showing  the  authority  of 
Hickman,  a  letter  written  by  the  defendant  to  the  plaintiff  on  August 
10,  1910,  was  introduced  in  evidence.  The  letter  referred  to  Hickman 
as  follows:  "I  understood  from  Mr.  Hickman  that  the  probabilities 
were  you  would  come  at  once."  After  the  introduction  of  this  letter 
in  evidence  the  question  was  repeated,  "Now  what  did  Mr.  Hickman 
tell  you  when  you  saw  him?"  The  question  was  objected  to  on  the 
ground  that  the  statement  in  the  letter  was  not  sufficient  to  quality 
Hickman  as  an  agent  to  make  declarations  which  would  bind  the  de- 


The  Parol  Evidence  Rule  767 

fendant  as  principal.     The  judge  admitted  the  evidence  and  the  de- 
fendant excepted. 

The  conversation,  as  testified  to,  was  in  part  to  the  effect  that  the 
plaintiff  stated  that  he  was  informed  that  there  were  labor  troubles  in 
Boston,  and  that  Hickman  represented  to  him  that  there  was  no  trou- 
ble in  the  defendant's  shop.  This  was  all  the  evidence  bearing  upon 
the  question  of  Hickman's  agency  at  the  time  the  evidence  was  intro- 
duced. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $394; 
and  the  defendant  alleged  exceptions  to  the  admission  in  evidence  of 
the  plaintiff's  conversation  with  Hickman. 

Hammond,  J.  The  plaintiff  was  discharged  before  the  end  of  the 
year,  and  the  only  question  finally  left  to  the  jury  was  whether  the 
defendant  was  justified  in  so  discharging  him,  the  plaintiff  contending 
that  the  cause  of  his  discharge  was  that  he  was  a  "union  man,"  and 
the  defendant  contending  that  the  cause  was  the  misconduct  of  the 
plaintiff.    There  was  evidence  in  support  of  each  contention. 

The  only  question  before  us  is  whether  the  conversation  between 
the  plaintiff  and  one  Hickman  was  properly  admitted.  Clearly  it  was 
not  admissible  to  prove  the  terms  of  the  contract,  because  the  contract 
subsequently  was  reduced  to  writing.  But  the  burden  of  showing  the 
scope  of  Hickman's  authority  was  upon  the  plaintiff;  and  the  chief 
objection  is  that  there  was  no  evidence  outside  the  conversation  itself 
tending  to  show  the  authority  of  Hickman  to  make  any  representation 
about  the  existence  of  labor  troubles,  or  to  guarantee  that  there  were 
no  labor  troubles  in  the  defendant's  shop,  or  to  "guarantee  the  rest  of 
the  conditions."  Of  course  the  scope  of  the  authority  cannot  be  proved 
by  the  statement  of  the  agent  alone.  The  admission  of  the  evidence 
therefore  was  error. 

It  is  urged  by  the  plaintiff  however  that  the  error,  if  any,  was  not 
prejudicial  to  the  defendant.  But  it  is  to  be  presumed  that  the  jury 
thought  they  had  a  right  to  take  it  into  consideration,  and  it  is  obvious 
that  it  might  lead  them  into  a  train  of  thought  not  logical  to  the  issue 
and  yet  harmful  to  the  defendant. 

Exceptions  sustained. 


768  Cases  on  Evidence; 

VOGT  V.  SCHIENEBECK. 

.122  Wis.  4QI.     (1904) 

Action  to  recover  damages  for  breach  of  contract  for  the  sale  of  lum- 
ber. The  complaint  was  to  the  effect  that  defendant  contracted  to  sell 
plaintiff  100,000  feet  of  one-inch  pine  lumber  then  owned  by  the  for- 
mer and  piled  at  Stadler's  mill,  near  the  village  of  Butternut,  Wiscon- 
sin, at  $8  per  thousand  feet  for  the  culls,  and  $15  per  thousand  feet  for 
common  or  better,  delivery  to  be  made  to  the  plaintiff  free  on  board 
cars  at  Butternut  upon  demand  by  him  within  two  months  from  No- 
vember 15,  1902,  and  the  customary  inspection  fees  to  be  paid  one  half 
by  each  party;  that  defendant  breached  such  contract  by  refusing  to 
deliver  the  lumber  when  the  same  was  duly  demanded,  or  at  all,  to  the 
plaintiff's  damage  in  the  sum  of  $1,500. 

The  defendant,  for  answer  to  the  complaint,  denied  all  the  allega- 
tions thereof,  and  alleged  the  making  of  a  contract  substantially  as 
stated  in  the  complaint,  except  that  it  was  agreed,  as  part  of  such  con- 
tract, that  the  cars  for  use  in  delivering  the  lumber  to  the  plaintiff  were 
to  be  furnished  by  him,  the  lumber  to  be  delivered  only  upon  his  de'- 
mand  within  two  months  after  November  15,  1902;  that  he  would  fur- 
nish the  inspector  to  examine,  grade,  and  measure  the  lumber,  the 
expenses  to  be  paid  equally  by  the  parties ;  and  that  plaintiff  did  not 
within  the  time  specified,  or  before  the  commencement  of  the  action,  de- 
mand the  lumber  or  furnish  cars  for  use  in  delivering  the  same,  or  fur- 
nish or  offer  to  furnish  the  inspector;  that  on  the  contrary  he  at  all 
times  neglected  to  make  any  demand  for  the  lumber,  and  refused  to 
accept  the  same. 

The  evidence  showed  that  the  contract  was  in  writing  and  as  fol- 
lows: 

"Received  of  Paul  Vogt  of  Milwaukee,  Wil.,  Five  (5)  Dollars  on 
account  of  sale  to  him  by  me,  made  this  15th  day  of  November,  1902, 
of  100,000  feet  more  or  less  of  pine  one-inch  lumber  at  Eight  Dol- 
lars per  1,000  feet  cull  &  Fifteen  Dollars  per  1,000  feet  common  or  bet- 
ter now  at  Stadler's  Mill,  f.  o.  b.  cars  Butternut,  Wis.,  to  be  delivered 
upon  demand  within  two  months  from  above  date.  Inspection  fees 
paid  by  both  of  us. 

"Dated  at  Butternut,  Wis.,  Novbr.  15th,  1902. 

"JosEF  Schienebeck." 
Evidence  was  allowed,  against  objections  by  plaintiff's  counsel,  in 
effect  that  at  the  time  such  contract  was  made  plaintiff  verbally  agreed 


The  Parol  Evidence  Rule  769 

to  furnish  the  cars  for  use  in  deHvering  the  lumber;  also  as  to  what 
the  custom  was  between  buyer  and  seller  in  regard  to  such  matters. 

Marshall^  J.  There  was  evidence  on  the  part  of  the  defendant  to 
the  effect  that  at  the  time  of  the  verbal  agreement  preceding  the  mak- 
ing of  the  written  contract,  plaintiff  said  he  would  furnish  the  cars. 
The  learned  trial  court  denied  the  motion  for  judgment,  assummg 
that  such  evidence  raised  a  question  for  the  jury.  That  is  plain,  be- 
cause he  expressly  referred  to  such  evidence  in  submitting  the  cause  as 
to  whether  the  plaintiff  did  or  did  not  agree  to  furnish  the  cars.  In 
that  it  seems  the  rule,  that  a  written  contract  cannot  be  varied  by  parol 
evidence  of  what  was  said  between  the  parties  prior  to  or  at  the  time 
of  the  making  of  the  writing,  was  overlooked.  The  final  result  of  all 
negotiation  eventuating  in  the  making  of  a  contract  which  is  reduced 
to  writing,  in  the  absence  of  rehevable  fraud  or  mistake,  is  conclusively 
presumed  to  be  embodied  therein,  unless  the  writing  appears  clearly  to 
be  merely  a- part  execution  of  an  entire  verbal  contract,  which  is  not 
the  case  in  the  instance  before  us.  Here  was  the  ordinary  occurrence 
of  closing  contractual  negotiations  by  reducing  the  consequent  verbal 
agreement  to  writing.  If,  in  doing  so,  anything  was  left  out,  the  party 
prejudiced  is  without  remedy  upon  the  contract  except  to  appeal  to 
equity  for  its  reformation  and  the  enforcement  thereof  as  corrected. 
John  O'Brien  L.  Co.  v.  Wilkinson,  117  Wis.  468,  94  N.  W.  337;  Braun 
V.  Wisconsin  R.  Co.,  92  Wis.  245,  66  N.  W.  196;  Herbst  v.  Lowe,  65 
Wis.  316,  26  N.  W.  751.  In  Braun  v.  Wisconsin  R.  Co.  it  was  said 
that  the  execution  mentioned,  to  the  exclusion  of  evidence  of  what  was 
said  or  occurred  at  the  time  of  making  a  written  contract,  is  never  to 
be  so  extended  as  to  permit  evidence  of  mere  contemporaneous  stip- 
ulations or  conditions,  the  writing  being  the  agreement  reached  and  not 
a  mere  part  performance  or  incident  of  it.  It  follows  that  the  oral  tes- 
timony as  to  what  plaintiff  said  respecting  who  was  to  furnish  the  cars, 
when  the  contract  was  made,  cannot  be  regarded  as  a  justification  for 
denying  appellant's  motion  for  a  verdict. 

By  the  court. — The  judgment  is  reversed,  and  the  cause  remanded 
for  a  new  trial. 


770  Cases  on  Evidence 

HARTMYER  v.  EVERLY. 
75  W.  Va.  88.     (1913) 

Robinson,  Judge : 

The  action  is  ejectment.  The  jury  found  for  defendants,  and  judg- 
ment followed  accordingly. 

There  is  clearly  no  ambiguity  in  the  deeds.  Looking  to  them,  we 
find  them  certain  as  to  meaning  in  the  description  of  the  land.  Not  a 
single  term  indicates  that  they  were  meant  to  convey  the  land  by  the 
description  in  the  patent.  They  cannot  be  changed  by  the  assumption 
that  they  are  unambiguous.  No  part  of  the  description  in  a  deed  is  in- 
consistent with  the  remaining  part,  and  thus  shown  to  be  erroneous,  it 
may  be  rejected;  or,  when  the  description  given  is  uncertain  and  am- 
biguous, parol  or  extrinsic  evidence  will  be  admitted  to  show  to  what 
it  truly  applies.  But  where  terms  are  used  in  a  description  which  are 
clear  and  intelligible,  the  court  will  put  a  construction  upon  those 
terms,  and  parol  or  extrinsic  evidence  will  not  be  admissible  to  control 
the  legal  effect  of  such  description.  Devlin  on  Real  Property  and 
Deeds,  sec.  1042;  Bond  v.  Fay,  12  Allen,  86.  Plaintiffs  could  not 
change  the  terms  of  their  deeds  by  extrinsic  evidence,  as  they  were  per- 
mitted to  undertake  to  do.  They  could  not,  in  ejectment,  reform  the 
deed  by  which  they  held  their  land,  so  as  to  take  in  the  parcel  sought 
to  be  recovered.  This  case  is  controlled  by  a  well  known  general  rule 
which  has  been  concisely  stated  as  follows :  "Where  the  description 
in  a  deed  of  the  premises  intended  to  be  conveyed  is  clear  and  free  from 
ambiguity,  it  can  not  be  varied,  controlled,  or  contradicted  by  parol  or 
extrinsic  evidence.  In  such  case  the  deed  must  be  held  to  be  conclu- 
sive evidence  as  to  what  land  is  intended  by  the  grantor  to  be  con- 
veyed, the  quantity  of  land,  and  likewise  the  conclusive  evidence  of  his 
intention  to  include  in  or  exclude  from  the  instrument  particular  land" 
17  Cyc,  616. 

Plaintiffs'  evidence  did  not  appreciably  tend  to  make  a  case.  The 
jury  having  reached  a  verdict  that  the  court  should  have  directed,  the 
judgment  entered  thereon  will  be  affirmed. 

Affirmed. 


The  Parol  Evidence  Rule  771 

UIHLEIN  V.  MATTHEWS. 
1^2  N.  Y.  154.     (1902) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  February  i,  1901, 
affirming  a  judgment  in  favor  of  plaintiffs  entered  upon  a  decision  of 
the  court  on  trial  at  Special  Term. 

O'Brien,  J.  The  judgment  in  this  action  awarded  a  permanent  in- 
junction against  the  defendant,  restraining  her  from  using  or  permit- 
ting the  use  of  her  premises  as  a  place  for  the  sale  of  ales,  beers,  wines 
and  liquors,  for  the  period  of  five  years  from  May  4,  1898. 

The  precise  question  is  whether  a  person  who  has  an  interest  in  the 
real  property  of  his  next  neighbor  in  the  nature  of  an  easement,  and 
who  conveys  absolutely,  without  any  exception  of  reservation  of  such 
easement,  can  afterward  be  permitted,  in  an  action  to  enforce  the  right 
involved  in  the  easement,  to  show  by  parol  that  he  intended  to  retain 
it,  notwithstanding  his  deed.  We  think  that  the  testimony  was  inad- 
missible. The  deed  in  terms,  as  we  have  seen,  purported  to  convey  all 
the  right,  title  and  interest  to  the  grantor.  The  language  employed  nec- 
essarily included  any  easement  that  the  grantor  had  or  claimed  with 
respect  to  the  premises  conveyed,  and  it  was  not  competent  to  show  by 
parol  evidence  that  the  easement  was  reserved  or  excepted.  It  was  a 
violation  of  the  rule  which  excludes  such  evidence  to  vary,  explain  or 
contradict  a  written  instrument  that  was  complete  in  itself  and  without 
ambiguity  in  its  terms.  The  legal  effect  of  the  deed  upon  the  words  em- 
bodied in  the  conveyance,  and  not  with  reference  to  what  the  grantor 
thought  or  understood.  When  words  have  a  definite  and  precise  mean- 
ing, it  is  not  permissible  to  go  elsewhere  in  search  of  conjecture  in  order 
to  restrict  or  extend  the  meaning.  That  deeds  or  other  written  in- 
struments cannot  be  varied,  enlarged  or  restricted  by  evidence  of  that 
character  appears  from  the  words  of  the  statute  and  the  general  con- 
sensus of  authority.  (Chap.  647,  Laws  of  1896,  sec.  205;  Armstrong 
v.  Lake  Champlain  Granite  Co.,  147  N.  Y.  495 ;  McCluskey  v.  Crom- 
well, II  N.  Y.  601 ;  Green  v.  Collins,  86  N.  Y.  254;  Thomas  v.  Scutt, 
127  N.  Y.  133-138;  Case  v.  Phoenix  Bridge  Co.,  134  N.  Y.  78;  Engle- 
hom  V.  Reitlinger,  122  N.  Y.  76;  House  v.  Walch,  144  N.  Y.  418;  Dev- 
lin on  Deeds,  sec.  837.)  It  follows  that  all  parol  evidence  tending  to 
show  that,  notwithstanding  the  clear  and  comprehensive  words  of  the 
quitclaim  deed,  the  grantor  therein  still  retained  the  right  to  restrict 


772  Cases  on  Evidence 

the  grantee  in  the  use  of  the  property  conveyed  should  have  been  ex- 
cluded. 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  costs  to 
abide  the  event. 


ARMSTRONG  v.  GRANITE  CO. 

147  N.  Y.  495.     (1895) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  third  judicial  department,  entered  upon  an  order  made  May  9, 
1893,  which  affirmed  a  judgment  in  favor  of  defendant,  dismissing  the 
complaint  upon  the  merits. 

Andrews,  Ch.  J.  This  action  was  brought  to  restrain  the  defend- 
ants from  quarrying  granite  upon  lot  27,  Split  Rock  tract,  in  Essex 
county.     Both  parties  claim  title  to  the  granite. 

The  whole  question,  as  above  intimated,  turns  on  the  interpretation 
of  the  words  "minerals  and  ores"  in  the  second  deed.  In  view  of  the 
conclusion  we  have  reached  and  to  avoid  possible  misconceptions  in 
the  future,  it  is  proper  to  state  that  in  our  opinion  the  evidence  given 
and  admitted  on  behalf  of  the  defendant  under  objection  by  the  plain- 
tiflf,  that  the  purpose  of  Bridgford  and  his  co-grantees  in  securing  the 
deeds  of  1871  was  to  acquire  the  iron  ore  then  supposed  to  exist  on  the 
premises,  and  of  their  statements  contemporaneously  with  the  purchase, 
that  they  had  purchased  the  iron  ore  on  the  lot,  was  incompetent  to  ex- 
plain or  confine  the  meaning  of  the  words  "minerals  and  ores"  in  the 
deed  of  May  18,  1871.  The  evidence  would  have  been  incompetent  if 
it  had  related  to  the  motives  of  the  parties  to  the  deed  sought  to  be  es- 
tablished by  the  oral  statements  or  negotiations  between  them  prior  to 
or  contemporeaneous  with  its  execution.  The  words  of  a  deed,  unam- 
biguous in  themselves,  cannot  be  controlled  by  proof  that  the  parties 
used  them  with  a  definite  and  limited  meaning,  for  the  purpose  of  that 
particular  instrument.  Such  proof  might,  under  some  circumstances, 
be  competent  in  an  action  between  the  parties  to  reform  the  instrument, 
but  not  in  determining  the  rights  of  the  parties  under  the  instrument 
as  written.  The  incompetency  of  the  evidence  received  as  to  the  mo- 
tives of  the  original  grantees  and  of  their  statements  as  to  what  they 
intended  to  purchase  or  had  purchased,  is  still  more  manifest  in  view 
of  the  fact  that  they  were  disclosed  and  the  statements  made  to  third 


The  Parol  Evidence  Rule  773 

parties  not  connected  with  the  sale.     (See  Voorhees  v.  Burchard,  55 
N.  Y.  98.) 

Judgment  affirmed. 


CHANNEL  COMMERCIAL  CO.  v.  HOURIHAN. 
20  Cal.  A  pp.  647.     (19 1 2) 

JamES,  J.  This  is  an  action  for  damages  alleged  to  have  been  suf- 
fered by  plaintiff  through  breach  of  contract  committed  by  defendant. 
Plaintiff  alleged  in  its  complaint  that  on  the  thirtieth  day  of  Septem- 
ber, 1910,  in  the  county  of  Santa  Barbara,  it  purchased  of  defendant 
one  thousand  sacks  of  beans  at  the  rate  of  4^  cents  per  pound,  to  be 
delivered  at  once,  and  that  defendant  failed  and  refused  to  deliver  the 
same.  As  evidencing  the  alleged  contract  of  sale,  plaintiff  set  out  in 
its  complaint  that  a  memorandum  of  the  agreement  had  been  made  in 
the  following  form:  "Sep.  30,  '10.  Rec'd  C.  C.  Co.,  $160.45  to  ap- 
ply on  I  M.  sk  lot  pink  beans  as  per  sample  at  4^c.    M.  P.  Hourihan." 

The  vital  question  in  the  case,  however,  depends  upon  what  construc- 
tion shall  be  given  to  the  receipt  as  signed  by  defendant  and  as  set  out 
in  plaintiff's  complaint.  If  that  instrument  contains  sufficient  terms  to 
evidence  a  complete  contract  of  sale  and  purchase,  then  all  of  the  tes- 
timony introduced  which  tended  to  vary  or  limit  the  effect  of  that 
agreement  would  be  irrelevant  and  incompetent.  (Code  Civ.  Proc., 
sec.  1856.)  By  the  section  last  referred  to  it  is  provided  thai  where  an 
agreement  is  reduced  to  writing,  it  must  be  considered  as  containing  all 
of  the  terms  agreed  upon,  except  that  evidence  may  be  introduced  of 
the  circumstances  under  which  the  agreement  was  made,  or  to  explain  an 
extrinsic  ambiguity,  receipt,  so  called,  of  itself  evidenced  by  a  contract 
of  sale.  Plaintiff  only  treated  it  as  a  mere  memoranda  which  required 
explanation  by  oral  testimony  and  there  seems  not  to  have  been  any 
special  objection  made  on  the  part  of  plaintiff  to  the  introduction  of  any 
of  the  testimony  of  defendant  wherein  he  gave  his  version  of  the  trans- 
action. The  rule  is  that  where  a  writing  imports  upon  its  face  to  be  a 
complete  expression  of  the  whole  agreement,  it  is  then  presumed  that 
the  parties  have  introduced  into  it  every  material  item  and  term.  (Har- 
rison V.  McCormick,  89  Cal.  327  (23  Am.  St.  Rep.  469,  26  Pac.  830.) 
In  the  case  of  Gardiner  v.  McDonogh,  147  Cal.  313  (81  Pac.  964), 
relied  upon  by  appellant,  the  memorandum  stated  in  express  terms  that 


774  Cases  on  Evidence 

tlie  parties  had  that  day  "bought"  a  certain  quantity  of  beans,  stating 
the  name  of  the  beans  but  not  otherwise  designating  them  as  beans. 
Here  no  words  are  contained  in  the  written  receipt  appropriate  to  con- 
vey the  meaning  of  sale  or  purchase  and  undoubtedly  oral  testimony 
was  admissible  to  explain  just  what  the  obligations  of  the  parties  were 
in  the  entire  transaction.  The  instrument  was  in  the  nature  of  a  re- 
ceipt only,  in  the  consideration  of  which  it  has  been  often  held  that  the 
terms  of  such  documents  are  not  conclusive,  but  that  they  may  be  ex- 
plained or  varied  by  parol  proof,  (Snodgrass  v.  Parks,  79  Cal.  55, 
[21  Pac.  429.])  As  we  have  before  noted,  it  appears  from  the  record 
that  both  parties  at  the  trial  considered  that  the  true  transaction  was 
to  be  established  in  the  main  by  oral  proof,  for  both  sides  offered  such 
proof,  and  that  offered  on  the  part  of  the  defendant  to  this  point  was 
not  objected  to.  We  can  on  this  review  have  no  concern  as  to  whether 
the  preponderance  of  evidence  tended  to  sustain  the  plaintiff's  conten- 
tions, or  those  of  the  defendant.  That  was  a  matter  solely  for  the  de- 
termination of  the  trial  court  and  its  conclusions  thereon  must  be 
treated  as  final. 

The  order  denying  a  new  trial  is  affirmed. 

Allen,  P.  J.,  and  Shaw,  J.,  concurred. 

A  petition  to  have  the  cause  heard  in  the  Supreme  Court,  after  judg- 
ment in  the  District  Court  of  Appeal,  was  denied  by  the  Supreme 
Court  on  February  14,  1913. 


TRACY  v.  THE  UNION  IRON  WORKS. 
104  Mo.  ip3.    (i8pi) 

Barclay,  J.  Plaintiff  brought  this  action  to  recover  certain  instal- 
ments of  rent,  due  from  defendant  according  to  the  covenants  of  a 
lease  dated  April  24,  1884,  under  the  seals  of  both  parties,  whereby 
plaintiff  let  certain  business  property  in  Kanass  City,  Missouri,  to  de- 
fendant for  one  year  from  May,  1884,  on  terms,  one  of  which  was  the 
payment  of  $1,000  rent  during  that  period.  Defendant  went  into  pos- 
session and  concedes  non-payment  of  the  rent  in  dispute.  The  reason 
therefor  appears  in  the  counterclaim  interposed.  That  part  of  de- 
fendant's answer  and  the  evidence  supporting  it  raise  the  only  question 
presented  on  this  appeal. 

Defendant's  position  is  that  the  rent  due  is  subject  to  reduction  to 


The  Parol  Evidence  Kui,e  775 

the  extent  of  damages  sustained  by  defendant  by  the  breach  of  a  ver- 
bal agreement  between  plaintiff  and  defendant,  the  admissibility  of 
which  in  evidence  is  the  point  in  dispute. 

The  trial  court  heard  defendant's  testimony  on  the  subject  fully 
(over  objections),  and  then  directed  a  verdict  for  plaintiff,  a  stipula- 
tion having  been  made  at  the  outset  of  the  trial,  that  plaintiff  was  en- 
titled to  recover  the  amount  claimed  unless  the  defense  in  question 
was  established. 

The  facts  shown  on  defendant's  part  were  that  it  was  engaged  in 
the  manufacture  and  sale  of  cornshellers  and  other  farm  machinery  at 
Decatur,  Illinois.  It  rented  the  premises  at  Kansas  City  as  a  store- 
house and  business  office.  When  the  negotiations  for  the  lease  began, 
it  was  verbally  agreed,  between  plaintiff  and  defendant's  representa- 
tive, that  the  former  would  piit  in  a  railway  switch  (to  connect  the 
premises  with  a.  railroad  near  by)  for  the  use  of  defendant  for  shipping 
purposes.  Something  was  then  said  about  inserting  this  stipulation  in 
the  lease,  but  plaintiff  declared  it  was  not  necessary  as  the  thing  would 
be  done  by  the  time  defendant  would  be  ready  to  use  the  track  after 
moving  in,  adding  that  his  word  was  as  good  as  his  bond.  Shortly 
afterwards  the  lease  was  prepared  in  Kansas  City,  and  forwarded  to 
Decatur  for  signature  on  the  part  of  defendant.  On  examining  its 
terms,  the  defendant  made  an  amendment,  by  inserting  the  words,  "also 
office  desk  room  and  space  for  sample  machine  on  first  floor"  (as  they 
now  appear).  Then  the  instrument  was  formally  executed  by  both 
parties.  It  contains  no  such  express  agreement  as  defendant  now  in- 
sists upon,  concerning  a  railway  switch. 

On  this  showing  the  trial  court  directed  a  verdict  for  plaintiff. 

Defendant  contends  that  plaintiff's  prior  agreement  to  add  a  railroad 
switch  to  the  demised  premises  should  be  regarded  as  collateral  to  the 
lease,  and  admissible  as  such.  It  is  not  denied  that  verbal  evidence 
,  in  contradiction  of  written,  and  especially  of  sealed,  documents  is 
usually  inadmissible ;  but  the  case  here  is  said  to  belong  to  a  recognized 
class  of  exceptions  to  that  rule.  Waiving  all  question  that  might  arise 
from  the  form  of  the  lease  as  a  specialty  and  treating  it  merely  as  a 
written  contract,  let  us  examine  the  merits  of  defendant's  contention. 

The  general  rule  excluding  evidence  of  contemporaneous  or  prior 
verbal  agreements,  varying  or  contradicting  the  terms  of  a  valid  writ- 
ten instrument,  is  the  outgrowth  of  the  common  experience  of  men. 
It  is  of  great  antiquity  and  appears  in  other  systems  of  jurisprudence 
besides  our  own.  Corp.  Jur.  Civ.,  Cod.  Lib.  4,  Tit.  20;  Tait's  Evid., 
pp.  326.  327. 


776  Cases  on  Evidence 

It  rests  on  principles  somewhat  analogous  to  those  which  underlie 
the  doctrine  of  the  conclusiveness  of  judgments  upon  parties  thereto. 
It  is  said  to  be  in  the  interest  of  the  state  that  there  should  be  an  end 
to  litigation.  Accordingly,  the  record  that  closes  a  forensic  contro- 
versy is  regarded  as  merging  the  matters  litigated  to  the  extent  declared 
in  the  judgment.  So,  in  private  adjustments  of  reciprocal  rights,  it 
is  wisely  considered  that,  when  parties  have  deliberately  put  their  mutual 
agreements  into  the  form  of  a  completed  written  contract,  that  ex- 
pression of  their  intention  should  be  accepted  as  a  finality,  in  which  is 
merged  all  prior  negotiations  within  the  scope  of  the  writing. 

But  the  rule  has  too  long  occupied  a  place  as  a  cornerstone  in  the 
law  of  evidence  to  require,  at  this  day,  any  justification  of  its  existence. 

We  may,  however,  properly  remark  that  the  adoption  of  the  modern 
practice,  admitting  as  witnesses  the  parties  directly  interested  in  the 
action,  seems  to  add  a  cogent  reason  to  those  existing  at  the  common 
law,  for  a  close  adherence  to  the  rule  under  discussion.  If  the  uncer- 
tainty of  "slippery  memory"  furnished  a  ground  for  excluding  such 
verbal  testimony  in  the  days  of  .Lord  Coke  (Countess  of  Rutland  v. 
Earl  of  Rutland  (1604),  Coke's  Reports,  Part  5,  26a),  how  much 
stronger  reason  for  such  exclusion  today  when  the  influence  of  self- 
interest  is  so  likely  to  render  the  memory  of  litigating  parties  more 
'slippery"  than  was  that  of  the  witnesses  of  olden  time. 

In  Missouri  the  general  fule  has  been  repeatedly  approved  in  early, 
as  well  as  recent,  decisions.  Woodward  v.  McGaugh,  (1843),  8  Mo. 
161;  Walker  v.  Engler  (i860),  30  Mo,  130;  State  ex  rel.  v,  Hoshaw, 
(1889),  98  Mo.  358;  Morgan  v.  Porter,  (1891),  103  Mo,  135;  15  S. 
W,  Rep,  289, 

There  are,  however,  cases,  here  and  elsewhere,  announcing  proposi- 
tions called  exceptions  to  this  rule.  Some  may  fairly  be  so  described, 
as,  for  example,  those  admitting  parol  evidence  to  contradict  a  recited 
consideration,  or  to  show  that,  in  equity,  an  absolute  deed  was  intended 
as  a  mortgage.  But  it  will  be  found,  we  think,  that  many  rulings,  on 
this  topic,  which,  at  first  sight,  appear  exceptional,  are  rather  instances 
not  embraced  within  the  true  meaning  and  scope  of  the  rule.  As 
such  may  be  mentioned  cases  in  which  fraud,  mistake  or  illegality  has 
prevented  the  written  instrument  from  acquiring  original  vitality  as 
a  contract,  or  those  admitting  evidence  to  identify  its  subject-matter, 
as  well  as  others  in  which  the  writing,  on  its  face,  appears  to  be  an 
incomplete,  or  merely  one-sided  expression  of  the  term  of  agreement, 
Rollins  V.  Claybrook  (1856),  22  Mo,  405;  Moss  v.  Green  (1867),  41 
Mo.  389. 


The  Parol  Evidence  Rule  Tjy 

The  pending  appeal  does  not  demand  any  attempt  to  classify  the  so- 
called  exceptional  cases.  Especially  do  we  abstain  from  any  effort  to 
indicate  what  kind  of  verbal  agreements  may  be  shown,  collateral  to 
a  written  one,  beyond  the  requirements  of  the  appeal  now  actually  in 
hand. 

The  facts  in  the  present  record  disclose  that  the  verbal  agreement, 
proposed  to  be  shown,  contemplated  a  substantial  addition  by  the  plain- 
tiff to  the  property  which  was  the  subject  of  the  demise,  whereas  the 
terms  of  the  written  lease  between  the  parties  declared  that  the  prem- 
ises were  let  "in  the  present  condition  thereof." 

Obviously  the  oral  testimony  in  question  contradicted  the  very  lan- 
guage of  the  writing  in  which  these  business  men,  dealing  at  arm's 
length,  had  deliberately  expressed  themselves.  We  think  the  learned 
circuit  judge  correctly  held  such  testimony  inadmissible  and  that  it 
could  find  no  proper  place  in  the  case  made  by  the  pleadings,  without 
departing  from  sound  principle  and  precedents. 

We  regard  the  action  of  the  trial  court  as  correct  and  accordingly 
affirm  the  judgment  of  the  Kansas  City  Court  of  Appeals,  which  was 
to  the  same  effect.    Sherwood,  C.  J.,  Black  and  Brace,  JJ.,  concur. 


ANDREWS,  ALLEN  &  MOOREFIELD  v.  TUCKER. 
12^  Ala.  602.     (1900) 

This  action  was  brought  by  the  appellees,  J.  A.  &  I.  C.  Tucker, 
against  M.  A.  Andrews,  T.  H.  Allen  and  J.  D.  Moorefield,  composing 
the  firm  of  Andrews,  Allen  &  Moorefield.  The  third  count  was  for 
$150  due  for  work  and  labor  done  under  a  contract  between  plain- 
tiffs and  defendants.  The  demurrer  of  the  defendants  to  the  third 
count  was  sustained.  The  grading  was  agreed  to  be  done  according 
to  the  specifications  attached  to  the  contract,  and  the  plaintiffs  agreed 
to  finish  and  complete  the  grading  as  specified  by  the  ist  day  of  March. 
1896,  "unless  prevented  by  the  weather." 

Sharpe,  J.  By  the  law  as  it  has  been  settled  in  this  state,  a  written 
contract  which  by  its  terms  is  executory  as  imposing  the  performance 
of  duties  other  than  the  mere  obligation  of  making  payment,  may 
while  the  contract  is  executory  in  respect  of  any  part  of  such  duties, 
be  altered,  modified  or  rescinded  with  or  without  a  writing  and  without 
any  other  consideration  than  that  of  mutual  assent.    Badders  v.  Davis, 


778  Cases  on  Evidence 

88  Ala.  369 ;  Robinson  v.  Bullock,  66  Ala,  547 ;  i  Brick  Dig.  394,  Sec. 
233.  And  such  change  under  such  circumstances  may  extend  to  the 
waiver  of  any  right  either  party  might  have  had  under  the  original 
contract  but  for  the  new  agreement.  Cornish  v.  Suydam,  99  Ala.  620. 
A  waiver  of  a  right  to  declare  a  contract  forfeited  may  even  be  im- 
plied from  conduct  of  the  parties  which  is  inconsistent  with  the  inten- 
tion to  claim  a  forfeiture.  Accordingly,  the  fact  that  the  contract  here 
involved  was  acted  upon  and  treated  by  the  parties  as  in  force  after 
the  time  specified  therein  for  completion  of  the  work  undertaken  by 
plaintiflFs  implied  an  agreement  on  the  defendants'  part  not  to  treat 
the  failure  of  completion  within  that  time  as  a  cause  of  forfeiture. 
Brigham  v.  Carlisle,  78  Ala.  243 ;  Stewart  v.  Cross,  66  Ala.  22, 

The  judgment  will  he  affirmed. 


J.  W.  RIPY  &  SON  V.  ART  WALL  PAPER  MILLS. 
41  Okla.  20.     (1913) 

Action  by  the  Art  Wall  Paper  Mills  against  J.  W.  Ripy  &  Son. 
Judgment  for  plaintiff,  and  defendants  bring  error.     Affirmed. 

Opinion  by  Brewer,  C.  The  Art  Wall  Paper  Mills,  a  corporation 
of  Dallas,  Tex.,  brought  this  suit  in  the  District  Court  against  J.  W. 
Ripy  &  Son,  a  co-partnership,  to  recover  the  purchase  price  of  certain 
goods,  wares,  and  merchandise,  sold  and  delivered  in  pursuance  of  a 
certain  written  contract  executed  by  the  parties.  We  will  hereafter 
refer  to  the  parties  as  they  were  called  in  the  trial  court.  The  case 
was  tried  to  a  jury,  and  a  verdict  returned  in  favor  of  the  plaintiff. 
The  defendants,  plaintiffs  in  error  here,  bring  up  the  case  on  case- 
made,  and  in  their  brief  seem  to  rely  upon  the  following  alleged  er- 
rors: First.  Overruling  defendants'  demurrer  to  the  petition.  Sec- 
ond. Placing  the  burden  of  proof  upon  the  defendants.  Third.  The 
r^xclusion  of  evidence  offered  by  defendants. 

The  evidence,  which  it  is  contended  the  court  erred  in  refusing  to 
admit,  was  intended  to  cover  several  different  contentions.  It  is  only 
referred  to  in  the  brief  by  general  statements  of  counsel,  in  the  main, 
<tnd  is  not  brought  into  the  brief.  We  have  gone  into  the  record,  how- 
ever, and  made  some  search,  and  find  that  the  real  complaint  is  in  the 
rejection  of  oral  evidence,  clearly  intended  to  either  vary,  modify, 
contradict,  enlarge,  or  destroy  the  plain  and  unambiguous  meaning  of 


The  Parol  Evidence  Rule  779 

the  written  contract.  For  instance,  evidence  was  offered  and  refused 
that  during  the  prior  and  contemporaneous  negotiations  terminating  in 
the  written  contract  it  was  agreed  that  plaintiff  would  not  sell  its 
goods  to  any  other  dealer  in  Oklahoma  and  Indian  Territory :  there  was 
no  hint  of  such  an  agreement  in  the  writing  which  the  parties  formally 
executed,  and  it  very  fully  defined  the  rights  and  duties  of  both  parties. 
The  expressed  purpose  of  the  evidence  was  to  so  ingraft  by  oral  evi- 
dence onto  a  written  contract,  legal  and  valid  and  in  no  sense  immoral 
or  against  public  policy,  a  new  and  foreign  meaning  so  as  to  render 
the  contract  when  so  enlarged  invalid  as  against  public  policy,  to  the 
end  that  the  law  would  then  strike  down  the  contract  when  so  enlarged, 
affording  defendants  a  means  of  escape  from  liability.  This  evidence 
was  properly  rejected,  and  the  same  may  be  said  of  the  rulings  on  the 
other  rejected  evidence. 

The  jury  passed  on  the  evidence,  and  its  verdict  was  approved  by 
the  trial  court.    To  our  minds  the  verdict  was  right. 

The  cause  should  be  affirmed. 

By  the  court:    It  is  so  ordered. 


KING  v.  HUDSON  RIVER  REALTY  CO. 
210  N.  Y.  467.     (1914) 

Chase,  J.  This  action  is  brought  to  recover  damages  for  the  alleged 
breach  of  a  covenant  contained  in  a  written  contract  dated  May  9, 
1906,  by  which  the  plaintiff  agreed  to  purchase  and  the  defendant  to 
sell  certain  lots  in  Bergen  county,  New  Jersey,  as  shown  on  a  map 
described  in  the  contract.    The  covenant  is  as  follows : 

"As  part  of  the  consideration  for  the  said  purchase  price  this  com- 
pany hereby  agrees  to  build  proper  streets  and  sidewalks  as  shown  on 
said  map  on  which  these  lots  abut",  and  put  in  a  sewer." 

The  plaintiff  performed  the  contract  on  his  part.  The  covenant 
was  not  performed  by  the  defendant  in  1906.  It  claims  to  have  per- 
formed the  covenant  in  1907  and  prior  to  September  i  of  that  year. 
It  did  in  1907  build  streets  and  sidewalks  abutting  said  lots  and  con- 
structed a  sewer  in  said  streets.  It  is  claimed  by  the  plaintiff  that  the 
streets  and  sidewalks  were  in  accordance  with  the  covenant. 

The  plaintiff  was  allowed  to  testify  that  some  time  before  the  writ- 
ten contract  was  made,  a  sales  agent  of  the  defendant  told  him  that  if 


780  Cases  on  Evidence 

he  would  purchase  the  lots  the  defendant  would  put  in  improvements 
the  same  as  had  been  done  on  sections  of  land  north  of  the  sections 
in  which  the  lots  were  situated,  "putting  the  streets  on  to  grade,  the 
sewers,  sidewalks,  gutters,  water  and  gas,  etc.,  all  the  improvements," 
and  that,  "he  would  try  and  have  the  improvements  completed  within 
about  six  weeks."  This  testimony  was  admitted  notwithstanding  the 
defendant  objected  to  the  same  as  "incompetent,  irrelevant  and  imma- 
terial, the  contract  being  in  writing."  The  objection  was  overruled 
and  the  defendant  excepted.  It  was  error  to  allow  such  testimony, 
as  the  agreements  prior  to  the  written  contract  were  merged  in  it. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 


WENTWORTH  v.  MANHATTAN  MARKET  CO. 
216  Mass.  374.     (ipis-14) 

De  Courcy,  J.  This  is  a  bill  in  equity  seeking,  among  other  things, 
to  have  the  defendants  ordered  to  specifically  perform  their  agreement 
under  a  lease  and  written  contract  by  erecting  a  building  upon  the 
leased  premises,  and  by  conveying  in  fee  a  certain  right  of  way;  and 
also  asking  that  they  be  enjoined  from  maintaining  a  stable  on  the 
leased  premises.  It  is  before  this  court  on  an  appeal  by  the  defend- 
ants from  an  interlocutory  decree  overruling  exceptions  to  and  con- 
firming a  master's  report,  and  from  the  final  decree. 

The  facts  out  of  which  the  controversy  arises  are  as  follows :  The 
defendant  occupied  for  market  purposes  a  building  .in  Cambridge,  the 
lease  of  which  was  about  to  expire.  It  leased  from  the  plaintiff  for  ten 
years  from  May  9,  1910,  with  the  privilege  of  renewal,  a  lot  of  land 
containing  about  six  thousand  five  hundred  square  feet,  located  in  the 
rear  of  property  known  as  Hyde's  block,  that  belonged  to  one  Cor- 
coran. There  was  on  the  leased  land  a  three-story  wooden  building 
thirty  by  sixty  feet  in  size,  the  ground  floor  of  which  long  had  been 
used  by  the  plaintiffs  as  a  stable  before  the  erection  of  his  four-story 
tenement  block.  The  parties  also  executed  a  collateral  contract  in 
writing,  later  referred  to.  The  principal  controversy  in  this  litiga- 
tion relates  to  the  size  and  character  of  the  new  building  that  the  de- 
fendant was  to  erect  on  the  leased  premises  within  two  years  from 
June  I,  1910. 


The  Paroi,  Evidence  Rule  781 

Exceptions  3,  4  and  6  are  to  the  admission  of  conversations  between 
the  parties,  before  the  execution  of  the  lease  and  contract,  relating  to 
the  building  proposed  to  be  erected  on  the  plaintiff's  land  and  to  the 
use  of  the  stable.  In  view  of  the  fact  that  the  papers  were  prepared 
by  a  skilled  attorney,  after  many  interviews  and  preliminary  drafts, 
that  according  to  the  uncontradicted  testimony  they  expressed  the  final 
conclusions  of  the  parties  and  that  the  contract  on  its  face  is  reason- 
ably plain,  it  is  not  clear  on  what  ground  this  testimony  was  admitted. 
Even  assuming  the  terms  of  the  instrument  in  which  the  previous  oral 
negotiations  were  merged  to  be  doubtful,  the  evidence  admissible  to 
clear  up  the  doubt  would  be  that  of  the  circumstances  attending  the 
transaction,  and  not  the  conversations  hfeld  in  the  course  of  the  prelimi- 
nary negotiations.  It  is  apparent  from  a  perusal  of  these  that  their 
natural  tendency  and  probable  effect  upon  the  master  was  to  vary  by 
oral  evidence  the  written  agreement  between  the  parties ;  and  these 
exceptions  must  be  sustained.  Jennings  v.  Puffer,  203  Mass.  534; 
Rochester  Tumbler  Works  v.  Mitchell  Woodbury  Co.,  215  Mass.  194. 


BOLLINGER  v.  GALLAGHER 
170  Pa.  84.    (1895)        . 

Trespass  for  alleged  wrongful  levy  and  sale  of  a  mule,  horse,  saddle 
and  two  bridles,  claimed  by  plaintiff  as  her  property. 

Verdict  and  judgment  for  plaintiff  for  $450.    Defendants  appealed. 

Opinion  by  Mr.  Justice  Williams,  July  18,  1895 : 

One  other  subject  requires  attention.  It  is  brought  to  our  notice 
by  the  eleventh  assignment  of  error.  Millard  F.  Taylor,  a  member  of 
the  Baltimore  bar,  was  called  as  a  witness  and  testified  that  he  was 
familiar  with  the  law  of  Maryland  relating  to  husband  and  wife.  He 
was  not  then  examined  as  to  what  the  law  was  held  to  be  by  the  courts 
of  that  state  on  any  subject  relating  to  husband  and  wife,  but  was  in- 
formed by  counsel  that  it  was  his  purpose  to  put  a  hypothetical  ques- 
tion to  him.  Before  this  question  was  framed  an  offer  was  required 
and  it  was  accordingly  reduced  to  form  thus :  "Defendants  propose 
to  prove  by  the  witness  that  if  a  wife  of  an  insolvent  debtor  in  Mary- 
land who  purchased  property  while  the  husband  was  in  insolvent  cir- 
cumstances, giving  in  payment  therefor  her  promissory  note  signed  by 
herself  and  her  husband  as  joint  makers,  and  two  sureties,  such  a 


782  Cases  on  Evidence 

purchase  would  not  be  so  exclusively  on  the  wife's  credit  as  to  give 
title  to  the  property  as  against  the  husband's  creditors  under  the  Mary- 
land law." 

It  should  be  noticed  that  this  is  not  an  offer  to  prove  what  the  law 
of  Maryland  is  as  held  by  its  courts,  but  an  offer  to  show  by  the  wit- 
ness what,  upon  the  facts  assumed  in  the  hypothetical  question,  his 
own  conclusion  is  as  to  what  would  be  held  by  the  courts  of  that  state. 
The  question  reached  after  the  opinion  of  the  witness  as  to  what  the 
courts  would  hold,  not  after  .his  knowledge  of  what  they  had  held. 
The  statutes  of  another  state  or  country  may  be  proved  by  a  properly 
authenticated  copy.  The  unwritten  law  of  such  state  or  country  may 
be  shown  by  the  decisions  of  the  courts  or  by  the  testimony  of  a  wit- 
ness who  is  familiar  with  it:  i  Greenleaf  on  Ev.  488;  Chesapeake 
Ins.  Co,  v.  Starke,  6  Cranch,  273;  but  such  evidence  is  to  the  court, 
and  for  its  information.  The  jury  must  take  the  law  from  the  court. 
The  law  of  another  state  upon  a  subject  coming  under  notice  in  the 
trial  of  a  cause  will  be  presumed  to  be  the  same  as  the  law  of  this 
state  upon  the  same  subject.  It  is  incumbent  upon  him  who  alleges 
that  it  is  different  to  show  just  what  it  is  to  the  court,  who  will  judge 
of  the  sufficiency  of  the  evidence,  and  its  effect,  and  instruct  the  jury 
thereon.  Ordinarily  expert  testimony  is  for  the  jury  and  is  intended 
to  aid  them  in  determining  a  question  of  fact.  They  are  not  bound 
by  it,  but  may  exercise  their  own  judgment  in  deciding  the  question 
in  regard  to  which  experts  have  testified,  7  Am.  &  Eng.  Ency.  of  Law, 
516,  and  may  in  doing  so  disregard  the  expert  testimony.  But  the 
proof  of  the  laws  of  another  state  is  not  made  by  experts  as  such.  It 
is  made  by  the  best  evidence  which  the  nature  of  the  law  in  question 
admits  of.  A  statute  admits  of  exact  proof  by  a  copy  and  for  this 
reason  it  cannot  be  shown  by  parol.  The  expositions  of  that  statute 
by  the  courts  are  not  necessarily  evidenced  by  any  sort  of  documentary 
matter  and  for  this  reason  may  be  proved  by  one  who  is  familiar  with 
them ;  but  a  conjecture,  or  a  professional  opinion,  as  to  what  the  law 
would  be  held  to  be  upon  certain  assumed  facts,  while  it  might  be 
desirable  for  the  guidance  of  a  client,  and  be  within  the  appropriate 
province  of  an  attorney  at  law  to  give,  is  not  admissible  as  proof  of 
what  the  law  actually  is.  With  the  statute  before  him  the  judge  in 
the  absence  of  an  interpretation  by  the  courts  of  the  proper  state  must 
make  his  own.  He  must  determine  its  meaning  and  its  operation  for 
himself,  and  unless  he  seeks  or  accepts  the  services  of  an  amicus  curiae, 
the  opinions  of  other  men  are  not  admissible  as  evidence  at  the  in« 


The  Paroi.  Evidence  Rule  783 

stance  of  either  party.     It  was  not  error  therefore  to  reject  the  offer 
resting  on  the  hypothetical  question. 

Upon  a  consideration  of  the  whole  case  the  assignments  of  error  are 
overruled  and  the 

Judgment  is  affirmed. 


MIDLAND  ROOFING  MFG.  CO.  v.  PICKENS. 
p6  S.  C.  286.    (191 3) 

The  opinion  of  the  court  was  delivered  by  Mr.  Justice  FrasER. 
The  plaintiff  in  its  complaint:  "That  on  or  about  the  i8th  day  of 
March,  nineteen  hundred  and  ten,  plaintiff  sold  and  delivered  to  the  de- 
fendant, on  account,  at  his  request,  goods,  wares  and  merchandise  to 
the  value  of  four  hundred  and  seventy-three  dollars,  an  itemized,  veri- 
fied copy  of  which  account  is  hereto  attached,  marked  Exhibit  A,  and 
made  part  of  this  complaint. 

That  the  said  goods,  wares  and  merchandise  were  reasonably  worth 
the  money  therein  charged  for  them,  and  no  part  thereof  has  been 
paid  except  the  sum  of  one  hundred  twenty-two  and  82-100  dollars, 
paid  as  freight  charges  thereon,  as  plaintiff  is  informed  and  believes, 
and  there  is  now  justly  due  and  owing  to  plaintiff  from  defendant  the 
sum  of  three  hundred  and  fifty  and  18-100  dollars." 

For  the  first  defense,  the  defendant  alleges  that  the  goods  mentioned 
in  the  complaint  were  delivered  by  the  plaintiff  to  and  received  by  the 
defendant  upon  a  special  contract  betwen  them,  whereby  plaintiff's 
salesman  entered  into  agreement  with  defendant  on  or  about  the  i8th 
day  of  March,  1910,  to  take  on  consignment  one-half  car  of  roofing. 
This  the  defendant  was  to  sell  for  plaintiff  and  every  thirty  days  remit 
proceeds  of  said  sales,  less  defendant's  commissicMis.  Said  goods  were 
received  on  or  about  the  6th  day  of  April,  1910,  before  any  part  of 
said  goods  were  sold  and  before  the  time  specified  in  the  agreement 
for  the  defendant  to  perform  his  part  thereof,  defendant's  storehouse 
was  destroyed  by  fire,  and  not  by  any  fault  or  negligence  of  defendant, 
said  roofing  was  destroyed.  That  the  title  of  said  goods  was  never  in 
the  defendant,  but  in  the  plaintiff." 

The  plaintiff  offered  in  evidence  a  written  order  signed  by  the  de- 
fendant. The  defendant  offered  evidence  to  show  that  on  the  day  the 
order  was  signed  and  before  the  agent  had  delivered  it  to  the  plaintiff 


784  Cases  on  Evidence 

for  acceptance,  he  had  notified  the  agent  that  he  withdrew  the  order 
and  that  then  and  there  he  made  a  new  parol  agreement  by  which  the 
plaintiff  was  to  ship  the  goods  to  the  defendant  upon  consignment. 
The  goods  were  destroyed  by  fire  before  any  part  was  sold.  The  de- 
fendant's evidence  was  entirely  by  parol.  The  plaintiff  objected  to  the 
evidence  on  the  ground:  ist,  that  parol  evidence  cannot  be  admitted 
to  vary  a  written  contract;  2nd,  that  inasmuch  as  the  defendanr  had 
alleged  a  special  contract,  that  is  a  contract  by  specialty,  he  could  not 
prove  a  parol  contract. 

The  general  rule  is  correctly  stated  that  a  written  contract  can  not 
be  varied  by  parol;  but  here  the  defendant  denied  that  the  writing 
ever  became  a  contract.  Until  the  writing  was  signed  or  acted  upon, 
that  is  accepted  by  the  plaintiff,  it  was  a  mere  offer  and  could  be  with- 
drawn. There  was  no  evidence  on  behalf  of  the  plaintiff  to  deny  the 
allegations  of  the  answer.  The  first  ground  of  objection  can  not  be 
sustained. 

Judgment  affirmed. 


PUTNAM  FOUNDRY  &  MACHINE  CO.  v.  CANFIELD. 
23  R.  I.  348.    (1904) 

Trespass  on  the  case  in  assumpsit.  Heard  on  petition  of  defendant 
for  a  new  trial,  and  petition  denied. 

TiLLiNGHAST,  J.  The  defendant  petitions  for  a  new  trial  on  the 
grounds  (i)  that  the  verdict  is  against  the  evidence;  and  (2)  that  the 
presiding  justice  erred  in  allowing  the  plaintiff  to  introduce  parol  evi- 
dence to  vary  a  written  contract. 

1.  An  examination  of  the  evidence  submitted  fails  to  satisfy  us 
that  it  is  not  sufficient  to  sustain  the  verdict. 

2.  The  written  contract  between  the  parties,  which  was  entered  into 
on  March  25,  1903,  was  for  the  furnishing  and  installing  by  the  plain- 
tiff of  a  steam-heating  and  drying  apparatus  in  the  defendant's  fac- 
tory in  Providence,  and  the  contract  stipulated,  amongst  other  things, 
that  "the  price  for  same,  complete,  will  be  eight  hundred  fifty  (850) 
dollars." 

The  contract  fixes  no  time  within  which  the  work  called  for  shall 
be  done,  nor  does  its  terms  specify  when  the  price  agreed  upon  shall 
be  paid. 


The  Paroi.  Evidence  Rule  785 

At  the  trial  of  the  case  the  plaintiff  was  allowed  to  offer  testimony, 
against  the  defendant's  objection,  that  on  April  2,  1903,  the  defendant 
requested  the  plaintiff  to  change  the  terms  of  payment  so  that  he 
might  pay  the  sum  of  $500  on  the  loth  of  April,  1903,  and  the  bal- 
ance on  the  loth  of  May.  The  reason  given  by  the  defendant  for  de- 
siring this  change,  according  to  the  plaintiff's  testimony,  was,  in  effect, 
that  it  would  be  more  convenient  for  him  to  pay  the  amount  agreed 
on  in  two  installments  than  to  wait  until  the  work  should  be  com- 
pleted and  then  pay  the  entire  amount. 

The  defendant  denies  that  any  such  conversation  as  that  testified  to 
by  the  plaintiff  was  had,  or  that  any  modification  whatever  was  made 
regarding  said  written  contract. 

This  raised  an  issue  of  fact  for  the  jury  to  determine;  and  there 
was  sufficient  evidence  offered  by  the  plaintiff  to  warrant  them  in  find- 
ingf  that  the  time  of  payment  was  modified,  as  aforesaid.  The  only 
question  for  us  to  determine  is  whether  the  testimony  which  was  of- 
fered by  the  plaintiff  was  admissible,  as  ruled  by  the  trial  court. 

We  think  it  was.  The  contract,  as  already  suggested,  contains  no 
stipulation  as  to  when  the  work  called  for  shall  be  paid  (although  it 
is  doubtless  true  that  under  said  contract  it  would  be  due  and  payable 
upon  the  completion  of  the  work),  and  hence  the  evidence  which  the 
plaintiff  was  permitted  to  introduce  was  not  inconsistent  with,  and  did 
not  tend  to  contradict,  the  written  contract.  Its  only  effect  was  to  fix 
a  different  time  of  payment  from  that  which  the  law  would  have  fixed, 
or  rather  the  time  would  have  been  implied  by  law,  in  the  absence  of 
any  special  agreement.  Nor  was  the  evidence  offered  in  violation  of 
the  familiar  rule  invoked  by  the  defendant's  counsel,  viz. :  that  "parol 
contemporaneous  evidence  is  inadmissible  to  contradict  or  vary  the 
terms  of  a  valid  written  instrument,"  for  the  evidence  was  not  of  a 
contemporaneous  agreement,  but  related  to  an  agreement  made  several 
days  subsequent  to  the  date  of  the  written  contract  in  question.  In 
short,  the  oral  evidence  offered  related  to  a  supplemental  agreement 
as  to  the  time  or  times  of  payment  for  the  work  called  for  by  the 
written  contract,  and  hence  in  no  event  was  it  obnoxious  to  the  rule 
of  evidence  above  stated. 

I'etition  for  new  trial  denied,  and  case  remanded  for  judgment  on 
the  verdict. 


786  Cases  on  Evidence 

CRELIER  V.  MACKEY. 

243  Penn.  363.     (1914) 

Assumpsit  on  written  contract.    Before  Evans,  J, 
The  contract  was  as  follows : 

"Thomas  R.  Mackey  Baking  Company, 
"Pittsburgh,  Pa,,  Feb.  23d,  1905. 

"An  agreement  between  Chas.  F.  Crelier  and  Thomas  R,  Mackey, 
President  of  the  Thomas  R.  Mackey  Baking  Co.,  in  consideration  of 
getting  the  dividends  on  $10,000  worth  of  common  stock  when  divi- 
dends are  declared,  and  a  salary  of  $200  per  month. 

"I  hereby  bind  myself  to  accept  the  position  as  foreman  of  the 
Thomas  R.  Mackey  Baking  Company  for  five  (5)  years,  and  agree 
to  report  for  duty  not  later  than  August  ist,  1905,  Mr.  Mackey  agree- 
ing to  protect  me  to  the  extent  of  $1400  on  my  twenty-five  (25)  shares 
of  Ward-Mackey  Company's  common  stock. 

"Mr.  Mackey  further  agrees  to  pay  Mr.  Crelier  in  cash  the  sum  of 
$1400  in  five  (5)  years  from  the  above  date. 

"(Signed)     Chas.  F.  Crelier. 

"Thos.  R.  Mackey." 
"Witnessed, 

"M.  Fagan." 

Opinion  by  Mr.  Justice  Brown,  January  5,  1914: 
Though  the  agreement  in  this  case  was  written  on  a  letterhead  of 
the  Thomas  R.  Mackey  Baking  Company,  and  Thomas  R.  Mackey, 
the  appellant,  is  therein  described  as  president  of  that  company,  it  is 
not  a  contract  between  the  said  company  and  the  appellee,  nor  is  there 
anything  in  it  showing  an  intention  of  the  parties  to  it  that  Crelier,  the 
appellee,  should  look  to  the  company  for  payment  of  the  sum  for  which 
he  sues.  Mackey,  as  an  individual,  agreed,  without  condition,  in  a 
separate  clause  of  the  contract,  that  he  would  pay  the  appellee  $1,400 
five  years  from  August  i,  1905,  and  to  the  agreement  he  appended 
his  individual  signature,  without  adding  anything  thereto  to  indicate 
that  he  did  not  intend  to  be  personally  bound.  As  the  agreement  is 
free  from  all  ambiguity,  it  was  for  the  court  to  construe  it,  and  it  was 
properly  construed  to  be  the  personal  obligation  of  the  appellant. 

The  disallowed  offer,  which  is  the  subject  of  the  first  assignment 
of  error,  was  to  show  that  the  agreement  was  not  what  it  clearly  pur- 
ported to  be,  but  that  the  appellant  had  executed  it  as  the  mere  repre- 


The  Parol  Evidence  Rule  ,      787 

sentative  of  the  Thomas  R.  Mackey  Baking  Company,  and  that  this 
fact  was  known  to  the  appellee  at  the  time  it  was  executed. 

Opinion  of  the  court. 

If  the  oflfer  had  been  allowed,  permission  would  have  been  given  the 
defendant  to  vary  and  contradict  the  terms  of  a  plain  contract  and  to 
substitute  for  it  another,  upon  which  the  appellee  would  have  no  cause 
of  action  against  the  appellant.  With  no  averment  in  the  affidavit  of 
defense,  and  with  no  offer  on  the  trial  to  prove  that  there  had  been  any 
fraud,  accident  or  mistake  in  the  execution  of  the  agreement,  its  plain 
terms  were  not  to  be  radically  changed  by  parol :  Hunter  v.  McHose, 
100  Pa.  38;  Wodock  v.  Robinson,  148  Pa.  503;  Krueger  v.  Nicola, 
205  Pa.  38;  Lowry  v.  Roy,  238  Pa.  9.  The  meaning  of  the  parties  to 
the  agreement  is  conclusively  presumed  to  have  been  set  forth  in  its 
written  words,  and,  as  they  speak  for  themselves,  their  meaning  was 
for  the  trial  judge. 

Judgment  affirmed. 


J.  J.  CRABLE  &  SON  v.  O'CONNOR. 
21  Wyo.  4.60,     (1913) 

Potter,  Justice. 

The  defendant  in  error  was  plaintiflf  in  the  court  below  and  brought 
this  action  against  J.  J.  Crable,  E.  I.  Crable  and  J,  J.  Crable  &  Son, 
plaintiffs  in  error  here,  to  recover  a  sum  of  money  alleged  to  be  due  as 
rent  for  certain  teams  delivered  to  J.  J.  Crable  &  Son  by  the  plaintiff 
pursuant  to  a  written  contract  set  out  in  the  petition  as  follows : 

Parol  evidence  was  admitted,  over  the  objection  of  the  defendants, 
to  sustain  the  averments  of  the  petition  to  the  effect  that  in  making 
the  contract  with  the  plaintiff  for  the  lease  of  the  term  E.  I.  Crable 
acted,  as  a  member  to  and  for  the  firm  of  J.  J.  Crable  &  Son,  and  it 
was  in  fact  a  partnership  contract.  It  is  contended  that  this  ruling 
was  error  for  the  reason  that  it  violated  the  principle  that  parol  evi- 
dence is  inadmissible  to  vary  or  contradict  the  terms  of  a  written  in- 
strument. 

The  law  is  well  settled,  both  in  England  and  this  country,  that  it  is 
competent  to  show  by  parol  evidence  that  a  party  who  is  named  in  and 
has  signed  a  contract  as  one  of  the  parties  thereto  was  an  agent  for 
another,  and  acted  as  such  agent  in  making  the  contract,  so  as  to  give 


788  Cases  on  Evidence 

the  benefit  of  the  contract  to,  and  charge  with  HabiHty,  the  unnamed 
principal ;  and  this  is  so,  whether  the  unnamed  principal  was  disclosed 
or  known  to  the  other  party  to  the  contract  at  the  time  it  was  made 
or  not,  although  there  is  occasional  opinion  to  the  contrary  where  the 
unnamed  principal  was  known  to  the  other  party  at  the  time.  (Hig- 
gins  V.  Senior,  8  M.  &  W.  834;  Jones  on  Ev.,  (2nd  Ed.  i  Sec.  452; 
9  Ency.  of  Ev.,  404-405 ;  Story  on  Agency,  (7th  Ed.)  Sec.  270;  4  Wig- 
more  on  Ev.,  Sec.  2438 ;  Curran  v.  Holland,  141  Cal.  437,  75  Pac.  46 ; 
Briggs  V.  Partridge,  64  N.  Y.  357,  21  Am.  Rep.  617;  Byington  v.  Simp- 
son, 134  Mass.  169,  45  Am.  Rep.  314.)     It  is  said  in  Story  on  Agency: 

"There  is  no  doubt  that  parol  evidence  is  admissible,  on  behalf  of 
one  of  the  contracting  parties,  to  show  that  the  other  was  an  agent 
only  in  the  sale,  although  contracting  in  his  own  name,  so  as  to  fix  the 
real  principal.  It  has  been  well  observed  that,  in  cases  of  this  sort, 
the  liability  of  the  principal  depends  upon  the  act  done;  and  not  merely 
upon  the  form  in  which  it  is  executed.  If  the  agent  is  clothed  with 
the  proper  authority,  his  acts  bind  the  principal,  although  executed  in 
his  own  name.  The  only  difference  is  that,  where  the  agent  contracts 
in  his  own  name,  he  adds  his  own  personal  responsibility  to  that  of 
the  principal,  who  has  employed  him." 

It  is  contended  that  the  conversations  at  the  time  the  contract  was 
made  were  inadmissible,  on  the  ground  that  agency  on  the  authority 
of  an  agent  cannot  be  proved  by  the  declarations  of  the  alleged  agent. 
But  it  was  competent  to  prove  the  transaction,  to  ascertain  whether 
E.  I.  Crable  acted  for  the  firm  or  on  his  own  behalf.  Whether  there 
was  a  firm,  and  whether  E.  I.  Crable  had  authority  to  act  for  it,  "would, 
perhaps",  as  said  in  the  Michigan  case  af  Beckwith  v.  Mace,  supra, 
"affect  the  validity  of  his  attempt  to  bind  others,  but  the  evidence 
offered  was  admissible  to  show  the  nature  of  the  contract  actually 
agreed  upon.'  In  that  case  the  evidence  had  been  excluded,  and  for 
that  reason  the  judgment  was  reversed.  Here  the  evidence  was  ad- 
mitted, and  properly  so,  for  it  explained  the  transaction  and  tended  to 
show  that  the  contract  was  made  for  the  partnership.  The  fact  of  the 
partnership  was  shown  by  other  evidence,  and  this  contract  was  such 
as  to  come  clearly  within  the  partner's  authority. 

As  above  indicated,  we  think  the  evidence  sufficient  to  justify  the 
trial  court  in  finding  that  E.  I.  Crable,  in  making  the  contract  for  the 
use  of  the  teams,  was  acting  for  the  firm  of  which  he  was  a  member, 
that  it  was  a  partnership  contract,  and  created  a  firm  obligation.  The 
amount  of  the  judgment  indicates  that  the  plaintiff  was  only  allowed 


The  Parol  Evidence  Rule  789 

the  rent  of  the  teams,  with  interest,  after  deducting  the  credit  given 
for  the  hay. 

For  the  reason  stated,  the  judgment  will  be  affirmed. 

Scott,  C.  J.,  and  Beard,  J.,  concur. 


COHEE  et  al.  v.  TURNER  &  WIGGINS. 

J7  Okla.  778.     (1913) 

Action  by  Turner  &  Wiggins  against  Charles  Cohee  and  others. 
Judgment  for  plaintiffs,  and  defendants  bring  error.     Affirmed. 

Opinion  by  Brewer,  C.  In  January,  1906,  the  plaintiffs  in  error 
entered  into  a  written  contract  of  employment  with  Turner  &  Wiggins, 
a  firm  of  lawyers,  by  which  said  firm  was  employed  to  represent  the 
interests  and  claims  of  a  class  of  colored  people  in  the  Choctaw  and 
Chichasaw  Nations  usually  called  "Freedmen",  before  Congress  and 
its  committees  and  the  various  departments  of  the  federal  govern- 
ment, in  the  protection  of  their  rights  and  in  the  advancement  of  their 
claims  and  interests  relative  to  enrollment  of  themselves  and  their  new- 
born babies,  and  as  to  their  rights  and  claims  of  right  in  the  lands  and 
properties  of  said  tribes.  This  suit  was  brought  on  said  contract,  and 
a  judgment  obtained  by  said  firm  of  lawyers  from  which  the  defend- 
ants below,  as  the  plaintiffs  in  error  here,  have  appealed. 

A  number  of  questions  are  raised  in  the  record,  but  two  of  which 
are  seriously  urged  in  the  brief;  the  others  appearing  to  have  been 
abandoned.  These  questions  are:  (i)  That  the  court  erred  in  re- 
fusing to  permit  the  defendants  to  testify  that  they  signed  the  contract 
in  their  representative  capacity  only  and  did  not  intend  to  be  bound 
individually  thereby.  (2)  That  the  court  abused  its  discretion  in  re- 
fusing to  permit  the  defendants  to  amend  their  answer  in  the  course 
of  the  trial  as  to  material  matters. 

I.  On  the  first  proposition  as  stated  above,  it  is  contended  that, 
although  the  contract  in  suit  is  in  writing  and  its  execution  admitted 
in  the  pleading,  yet  that  it  is  so  framed  as  to  be  ambiguous  as  to  the 
capacity,  whether  representative  or  individual,  in  which  the  makers 
signed  it.    The  contract  recites : 

"Now  therefore,  we  Charles  Cohee,  Robert  Cobb,  Ed.  Humdy,  etc., 
constituting  the  executive  committee  and  the  duly  authorized  and  em- 
powered members  and  claimants  in  this  behalf,  and  for  themselves  and 


790  Cases  on  Evidence 

those  whom  they  represent  as  such  claimants  in  the  premises,  do  hereby 
as  such,  warrant  and  guarantee  to  said  Turner  &  Wiggins,  that  in  the 
event  of  dihgent  performance  of  duty,  they  shall  receive  as  compensa- 
tion for  services  under  this  contract,  the  sum  of  one  dollar  per  capita 
aforesaid,  to  be  paid  by  the  said  parties  of  the  first  part." 

It  seems  to  be  well  settled  both  in  this  and  many  other  jurisdictions 
that  when  the  question  arises,  in  a  suit  on  a  written  obligation,  as  to 
whether  the  signers  executed  the  same  appears  on  the  face  of  the 
instrument  which  suggests  a  doubt  or  ambiguity  as  to  the  party  or  as 
individual,  and  anything  or  ambiguity  as  to  the  party  bound,  or  as  to 
the  character  in  which  the  signers  acted — parol  testimony  is  competent 
as  between  the  original  parties,  for  the  purpose  of  showing  their  true 
intent  in  the  execution  of  the  instrument.  Weagant  v.  Camden  et  al., 
ante,  132  Pac.  487;  Farmers'  &  M.  Bank  v.  Hoyt,  29  Okla.  yy2,  120 
Pac.  264;  Janes  v.  Citizens'  Bank,  9  Okla.  546,  60  Pac.  290;  Miller  v. 
Way,  5  S.  D.  468,  59  N.  W.  467;  Case  Mfg.  Co.  v.  Soxman,  138  U. 
S.  431,  II  Sup.  Ct.  360,  34  L.  Ed.  1 01 9.  The  list  of  authorities  on 
this  point  might  be  extended  indefinitely. 

Such  parol  evidence  is  not  admitted  for,  nor  does  it  have  the  effect 
of,  contradicting  or  varying  the  language  of  the  written  agreement, 
but  it  is  admitted  to  explain  away  the  doubt  inhering  in  the  written 
language  itself. 

But  is  the  contract  in  suit  ambiguous  or  uncertain  as  to  who  is  to 
be  bound,  or  as  to  the  character  in  which  the  signers  executed  the 
same?  The  claim  is  made  that  the  defendants  excuted  it  "as  members 
of  the  executive  committee  of  the  Choctaw  &  Chichasaw  Freedman's 
Association,  and  in  no  other  capacity."  This  contention  does  not  ap- 
pear sound.  If  we  analyze  the  language,  we  find  these  guarantors  say- 
ing "now  therefore  we  (following  with  the  twelve  individual  names) 
constituting  the  executive  committee,  etc.  *  ♦  ♦  and  for  them- 
selves, and  those  they  represent,  etc.,  warrant  and  guarantee  *  *  * 
the  payment  of  the  compensation  in  the  contract."  If  this  association 
had  any  legal  existence,  and  these  men  had  authority  to  bind  it,  they  did 
so.  But  it  is  further  clear  that  they  went  further  than  this,  and,  by 
the  very  letter  of  the  bond,  bound  themselves,  as  individuals,  in  spe- 
cific language,  in  addition  to  attempting  to  bind  the  so-called  association 
and  the  members  thereof.  Bad  grammar  does  not  necessarily  render 
the  meaning  of  a  writing  ambiguous  or  doubtful. 

The  cause  should  be  affirmed. 

By  the  court :    It  is  so  ordered. 


Ths  ParoIv  Evidence  Rule  791 

UNITED  SURETY  CO.  v.  MEENAN. 
211  N.  Y.  3p.    (1914) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  July  8,  1912,  aflfirming 
a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict  directed  by  the 
court. 

June  15th,  1909,  the  Gore-Meenan  Company,  of  which  Frank  E. 
Gore  was  president,  and  the  defendant  Daniel  Meenan  was  secretary, 
together  with  the  respondent,  executed  a  bond  to  Benjamin  B.  Odell, 
Jr.,  and  William  E.  Paine,  as  receivers  of  the  Thomas  McNally  Com- 
pany, in  the  sum  of  one  hundred  thousand  dollars,  which  recited  that 
the  Gore-AIeehan  Company  had  entered  into  a  contract  with  said  re- 
ceivers, bearing  date  the  15th  day  of  June,  1909,  whereby  said  com- 
pany had  been  employed  by  said  receivers  to  construct  part  of  the 
Catskill  aqueduct  between  Garrison  and  Peekskill,  as  shown  on  the 
contract  drawing  for  contract  number  two  between  the  McNally  Com- 
pany and  the  city  of  New  York.  The  condition  of  the  obligation  was 
that  the  Gore-Meenan  Company  should  faithfully  perform  the  contract 
and  pay  bills  for  labor  performed  and  materials  furnished.  This  bond 
was  executed  by  the  Gore  &  Meenan  Company  by  Gore  as  president. 

HoGAN,  J.  The  sole  question  to  be  determined  on  this  appeal  is  the 
correctness  of  the  rulings  made  by  the  trial  justice  in  the  exclusion  of 
evidence  offered  on  the  behalf  of  defendant  te  avoid  liability  upon  the 
instrument  in  suit  and  to  establish  that  the  writing  in  question  was  the 
undertaking  of  the  Gore-Meenan  Company,  of  which  defendant  was 
secretary,  and  was  not  the  individual  obligation  of  the  defendant;  that 
the  plaintiff  obligee  in  the  bond  understood  that  the  instrument  in  suit 
was  the  undertaking  of  the  corporation,  not  only  from  the  face  of  the 
same  but  it  treated  it  as  such  by  subsequently  preparing  an  indemnity 
bond  and  seeking  to  have  Meenan  individually  execute  the  same  in 
lieu  of  the  bond  in  suit.  For  the  purpose  of  establishing  the  acts  and 
knowledge  of  plaintiff,  defendant  called  as  a  witness  a  representative 
of  the  plaintiff,  and  propounded  questions  to  him  tending  to  disclose 
knowledge  on  the  part  of  the  plaintiff  that  the  bond  was  intended  by 
plaintiff  to  be  the  bond  of  the  Gore-Meenan  Company;  that  it  had 
been  treated  as  such  by  the  plaintiff,  and  that  an  attempt  had  been 
made  by  the  plaintiff  after  the  execution  of  the  instrument  in  question 
to  secure  from  the  defendant  individual  indemnity  in  addition  to  the 


792  Cases  on  Evidence 

Gore-Meenan  liability.    All  parol  evidence  offered  by  defendant  along 
the  line  stated  was  excluded  over  exceptions  by  defendant. 

If  upon  the  face  of  the  instrument  in  suit  such  ambiguity  is  found 
as  to  be  consistent  with  the  construction  either  that  the  defendant 
intended  to  execute  the  same  on  behalf  of  the  Gore-Meenan  Company 
or  as  an  individual,  parol  evidence  was  admissible  to  prove  the  cir- 
cumstances under  which  the  bond  was  executed  and  the  character  in 
which  the  defendant  signed  the  same. 

The  bond  in  its  entirety,  including  the  acknowledgment  of  the  same, 
was  set  forth  in  the  complaint  in  the  action,  and  was 'received  in  evi- 
dence upon  trial.  It  was  prepared  by  the  plaintiff  and  under  well- 
established  rules  of  law  must  be  strictly  construed  against  it.  The 
body  of  the  bond  does  not  contain  the  name  of  the  defendant.  True 
it  does  refer  to  the  parties  thereto  in  an  individual  sense,  but  it  also 
refers  to.  "successors",  thus  disclosing  the  adaptability  of  the  blank 
form  to  execution  by  a  corporation  as  well  as  an  individual.  At  the 
close  of  the  instrument  will  be  found  first  the  corporate  seal  of  the 
Gore-Meenan  Company ;  this  was  followed  by  the  signature  of  the  de- 
fendant Meenan  and  the  signature  .of  Gore.  The  acknowledgment  was 
by  Gore,  "President  of  the  Gore-Meenan  Co." ;  then  follows  the  ac- 
knowledgment wherein  appears  the  name  of  Meenan  who  did  depose 
that  he  was  secretary  of  the  Gore-Meenan  Company,"  the  corporation 
described  in  and  which  executed  the  foregoing  instrument;  that  he 
knows  the  seal  affixed  to  the  said  instrument  is  such  corporation  seal  ; 
that  it  was  so  affixed  by  order  of  the  Board  of  Directors  of  the  said 
corporation,  and  that  he  signed  his  name  to  the  said  instrument  by  like 
order." 

The  instrument  upon  the  face  thereof  discloses  it  was  executed  the 
day  following  the  execution  by  the  Gore-Meenan  Company  of  an  appli- 
cation (which  was  placed  in  evidence  by  the  plaintiff)  for  a  bond  sub- 
stantially in  terms  the  language  of  the  bond  in  suit. 

At  common  law  a  contract  under  seal  of  a  corporation,  attested  by 
the  signature  of  its  executive  officers,  was  prima  facie  the  contract  of 
the  corporation.  The  seal  of  the  corporation  was  its  signature.  (Trus- 
tees v,  Mckechnie,  90  N.  Y,  618;  People's  Bank  v.  St.  Anthony's  R. 
C.  Church,  109  N.  Y.  512-525;  Quackenboss  v.  G.  &  R.  F.  Ins.  Co., 
177  N.  Y.  71.).  The  seal  of  the  corporation  having  been  affixed  to 
the  instrument  followed  by  the  signatures  of  the  president  and  secre- 
tary, designated  in  the  acknowledgment  as  such,  the  presumption  fol- 
lows that  the  seal  of  the  corporation  was  attached  to  the  instrument 
by  proper  authority. 


The  Parol  Evidence;.  Rule  793 

We  are  of  the  opinion  that  the  instrument  in  suit  was  not  free  from 
ambiguity,  and  that  parol  evidence  was  admissible  to  prove  the  circum- 
stances under  which  the  same  was  executed,  also  to  establish  facts  dis- 
closing knowledge  of  the  plaintiff  that  the  purpose  of  the  bond  in  suit 
was  to  bind  the  Gore-Meenan  Company  and  not  the  defendant  in  the 
suit  (Schmitter  v.  Simon,  114  N.  Y.  176)  ;  therefore,  the  trial  justice 
was  in  error  in  refusing  to  receive  such  evidence  and  for  that  reason 
judgment  must  be  reversed. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  costs  to 
abide  the  event. 

WiLLARD  Bartlett,  Ch.  J.,  Werner,  Collin  and  CuddEback,  JJ., 
concur;  Hiscock,  J.,  dissenting;  MillER,  J.,  not  sitting. 

Judgment  reversed,  etc. 


BARBRE  v.  GOODALE. 
28  Or.  465.     (1896) 


This  is  an  action  by  J.  I.  Barbre  against  J.  C.  Goodale  to  recover 
upon  two  separate  causes.  The  first  is  upon  a  written  agreement  which 
purports  upon  its  face  to  be  the  agreement  of  one  G.  W.  Handsaker, 
of  the  first  part,  and  J.  C.  Goodale,  of  the  second  part.  By  its  terms, 
in  brief,  the  first  party  agrees  to  cut,  haul,  bank,  and  deliver  to  the 
second  party  two  million  feet  of  fir  logs,  and,  if  certain  conditions  of 
the  lumber  market  continued  to  prevail,  an  additional  one-half  million 
feet,  at  a  certain  point  upon  the  McKenzie  River  in  Lane  County, 
at  the  rate  of  three  dollars  per  thousand,  to  be  paid  by  the  second  party 
as  follows :  One  dollar  per  thousand  when  the  logs  were  cut  and 
banked,  and  one  dollar  per  thousand  when  scaled  and  rolled  in  the 
river,  and  such  balance  as  should  be  found  due  between  the  parties  with- 
in thirty-one  days  thereafter. 

The  second  cause  of  action  is  based  upon  the  sale  and  delivery  by 
the  plaintiff  to  defendant  of  nine  hundred  and  eighty-seven  thousand 
feet  of  other  logs  at  three  dollars  and  twenty-five  cents  per  thousand, 
upon  which  a  balance  of  four  hundred  and  seventy-two  dollars  and 
thirty-four  cents  is  claimed.  At  the  trial  plaintiff  had  a  verdict  for 
two  hundred  and  seventy-two  dollars,  and  from  the  judgment  thereon 
the  defendant  appealed.    Affirmed. 

Opinion  by  Mr.  Justice  Wolverton  : 


794  Cases  on  Evidence 

The  question  is  here  presented  whether  it  is  competent  to  show  by 
parol  testimony  that  a  contract  executed  by  and  in  the  name  of  an  agent 
is  the  contract  of  the  principal,  where  the  principal  was  known  to  the 
other  contracting  party  at  the  date  of  its  execution.  There  are  two 
opinions  touching  the  question  among  American  authorities — the  one 
affirming  and  the  other  denying;  but  the  case  is  one  of  the  first  im- 
pression here,  and  we  feel  constrained  to  adopt  the  rule  which  may 
seem  the  more  compatible  with  the  promotion  of  justice,  and  the  exac- 
tion of  honest  and  candid  transactions  between  individuals.  The  Eng- 
lish authorities  are  agreed  that  parol  evidence  is  admissible  to  show 
that  a  written  contract  executed  in  the  name  of  an  agent  is  the  con- 
tract of  the  principal,  whether  he  was  known  or  unknown;  and  the 
American  authorities  are  a  unit  so  far  as  the  rule  is  applied  to  an  un- 
known principal,  but  disagree  where  he  was  known  at  the  time  the  con- 
tract was  executed  or  entered  into  by  the  parties.  All  the  authorities, 
both  English  and  American,  concur  in  holding  that,  as  applied  to  such 
contracts  executed  when  the  principal  was  unknown,  parol  evidence 
which  shows  that  the  agent  who  made  the  contract  in  his  own  name 
was  acting  for  the  principal  does  not  contradict  the  writing,  but  simply 
explains  the  transaction;  for  the  effect  is  not  to  show  that  the  person 
appearing  to  be  bound  is  not  bound,  but  to  show  that  some  other  per- 
son is  bound  also.  And  those  authorities  which  deny  the  application 
of  the  rule  where  the  principal  was  known  do  not  assert  or  maintain 
that  such  parol  testimony  tends  to  vary  or  contradict  the  written  con- 
tract, but  find  support  upon  the  doctrine  of  estoppel,  it  being  maintained 
that  a  party  thus  dealing  with  an  agent  of  a  known  principal  elects 
to  rely  solely  upon  the  agent's  responsibility,  and  is  therefore  estopped 
to  proceed  against  the  principal.  The  underlying  principle,  therefore, 
upon  which  the  authorities  seem  to  diverge,  is  the  presumption  created 
by  the  execution  of  the  contract  in  the  name  of  the  agent,  and  the  ac- 
ceptance thereof  by  a  party,  where  the  principal  is  known.  Is  this 
presumption  conclusive  or  is  it  disputable?  Without  attempting  to 
reconcile  the  decisions,  we  believe  the  better  rule  to  be  that  the  pre- 
sumption thus  created  is  a  disputable  one,  and  that  the  intentions  of 
the  party  must  be  gathered  from  his  words,  and  the  various  circum- 
stances which  surround  the  transaction,  as  its  practical  effect  is  to  pro- 
mote justice  and  fair  dealing.  The  principal  may  have  recourse  to  the 
same  doctrine  to  bind  the  party  thus  entering  into  contract  with  his 
agent.  Parol  evidence,  however,  is  not  admissible  to  discharge  the 
agent,  as  the  party  with  whom  he  has  dealt  had  his  election  as  to 
whether  he  will  hold  him  or  the  principal  responsible.    This  doctrine 


1  The  Parol  Evidence  Rule  795 

must  be  limited  to  simple  contracts,  and  may  not  be  extended  to  nego- 
tiable instruments  and  specialties  under  seal,  as  they  constitute  an 
exception  to  the  rule. 

If  any  instrument  is  valid  without  a  seal,  although  executed  under 
seal,  it  is  to  be  treated  as  written  evidence  of  a  simple  contract ;  and  the 
seal  adds  nothing,  except,  under  our  statute,  it  is  made  primary  evi- 
dence of  a  consideration:  Stowell  v.  Eldred,  39  Wis.  626;  Byington 
V,  Simpson,  134  Mass.  169  (45  Am.  Rep.  314)  ;  Rector  of  St.  David's 
V.  Wood,  24  Or.  404  (34  Pac.  18). 

Now,  looking  to  the  contract  which  is  the  basis  of  the  cause  of  action 
under  consideration,  we  find  that  it  was  executed  in  manner  and  form 
as  requested  by  the  defendant,  and  to  subserve  a  special  purpose  pe- 
culiar to  his  interest,  with  the  express  avowal  that  it  should  be  treated 
as  the  contract  of  plaintiff,  although  executed  in  the  name  of  Hand- 
saker  the  agent.  It  is  further  disclosed  that  both  the  defendant  and 
the  plaintiff  afterwards  so  treated  it ;  the  plaintiff  proceeding  under  it, 
and  in  obedience  with  the  terms  and  conditions  thereof  in  cutting, 
hauling,  and  banking  the  logs  preparatory  to  delivery,  and  the  defend- 
ant by  making  payments  to  him  from  time  to  time,  sometimes  directly, 
and  sometim.es  through  Handsaker,  the  agent.  This  ratification,  con- 
stitutes a  very  significant  feature  of  the  inquiry.  Aside  from  this,  the 
contract  discloses  upon  its  face  that  a  part  of  the  consideration  for 
these  logs  moved  directly  from  the  defendant  to  plaintiff.  Under  these 
attendant  circumstances,  and  others  which  might  be  alluded  to,  we 
think  the  court  committed  no  error  in  admitting  the  testimony  to  show 
who  were  the  real  parties  to  the  contract,  as  well  as  to  explain  how 
the  clause  touching  the  one  thousand  seven  hundred  dollars  came  to 
be  placed  therein.  The  admission  of  the  parol  evidence  touching  this 
clause  may  be  upheld  as  being  explanatory  of  the  consideration  which 
in  part  supports  the  contract. 

Affirmed. 


DECOWSKI  V.  GRABARSKI. 

181  III.  App.  2jg.     (19 13) 

Statement  by  the  court.  Plaintiffs  in  error,  hereinafter  called  de- 
fendants, are  seeking  in  this  court  a  reversal  of  a  judgment  obtained 
against  them  by  Peter  Decowski,  hereinafter  called  plaintiff,  on  a  cog- 
novit under  a  power  of  attorney  contained  in  a  promissory  note. 


796  Cases  on  Evidence 

Defendants  entered  an  appearance  and  filed  an  affidavit,  whereupon 
leave  was  given  to  make  a  defense,  and  judgment  to  stand  as  security 
and  the  affidavit  to  stand  as  an  affidavit  of  merits.  A  trial  was  had  by 
the  court,  which  found  for  the  plaintiff  and  entered  judgment  against 
the  defendants  by  confession. 

The  note  in  question  is  in  part  as  follows : 

"$83.34.  Chicago,  111.,  May  i,  1910. 

Two  years  after  date  for  value  received  we  promise  to  pay  to  P. 
Decowski  or  order  Eighty-three  and  34/100  Dollars  at  our  office,  1112- 
1 1 14  Milwaukee  Ave. 

Witness  hand  the  day  and  year  first  above  written. 

In  presence  of 

Albert  F.  Grabarski,  Pres. 
E.  J.  Tomczak,  Secy. 
No Due  May  i,  1912." 

By  the  affidavit  of  merits  it  was  claimed,  in  substance,  that  the  note 
was  executed  by  the  defendants  as  president  and  secretary,  respectively, 
of  a  corporation  called,  "The  Bell",  and  that  the  note  was  the  obliga- 
tion of  The  Bell  and  not  of  the  defendants  individually ;  that  no  con- 
sideration had  ever  been  received  by  them,  as  individuals  for  the  exe- 
cution of  the  note ;  that  in  1908  The  Bell  assessed  its  stockholders, 
among  whom  was  the  plaintiff;  that  said  assessment  was  a  loan  by  the 
stockholders  to  the  corporation,  and  that  the  corporation  evidenced  its 
indebtedness  to  the  plaintiff  for  the  amount  loaned  by  him  to  the  cor- 
poration by  giving  him  its  promissory  note  for  $83.34  due  two  years 
after  date ;  that  subsequently  said  corporation  changed  its  officers,  and 
the  defendant  Grabarski  became  its  president,  and  the  defendant  Tomc- 
zak, its  secretary;  that  thereafter,  upon  the  maturity  of  the  aforesaid 
note,  the  defendants,  acting  for  the  corporation  as  president  and  secre- 
tary, res'pectively,  executed  and  delivered  to  plaintiff  a  new  note  in 
place  of  the  old  one,  upon  which  new  note  the  judgment  herein  was 
entered,  but  which  note  was  not  the  individual  indebtedness  of  the  de- 
fendants but  was  executed  and  delivered  as  the  indebtedness  of  the  cor- 
poration. 

Mr.  Justice  McSurely  delivered  the  opinion  of  the  court. 

The  question  for  our  determination  is  whether  or  not  the  defendants, 
individually,  are  obligated  by  the  note  in  question.  From  an  examina- 
tion of  the  record  we  find  that  the  word  "we"  appearing  in  the  note 
was  inserted  after  its  maturity,  but  by  whom  is  not  shown.  However, 
we  do  not  deem  this  to  be  important.  The  use  of  the  word  "we"  in 
this  connection  indicates  nothing  as  to  whether  the  note  was  intended 


The  Paroi.  Evidence  Rui,e  797 

to  be  the  obligation  of  the  individuals  or  of  the  corporation.     New 
Market  Sav.  Bank  v.  Gillet,  lOO  111.  254. 

Examination  of  the  decisions  in  the  reported  cases  cited  by  respec- 
tive counsel  does  not  give  definite  assistance  in  arriving  at  the  con- 
clusion upon  the  issue  before  us. 

It  was  said  in  Scanlan  v.  Keith,  102  111.  634  (641)  : 

The  possible  task  of  reconciling  the  decisions  on  this  branch  of  the 
law  will  not  be  attempted,  nor  would  it  subserve  any  good  purpose  to 
review  any  considerable  number  of  cases  in  other  courts  on  this  sub- 
ject. They  will  be  found  to  be  conflicting  as  the  cases  are  numerous. 
Much  of  the  contrariety  observed  in  the  decisions,  both  in  the  American 
States  and  in  England,  no  doubt  arises  out  of  the  equities  of  each  case, 
and  of  an  eflFort  on  the  part  of  courts  to  carry  out  what  was  supposed 
to  be  the  intentions  of  the  parties  executing  such  notes  or  bills." 

However,  it  seems  to  be  fairly  settled  by  the  decisions  in  this  statq 
that  a  party  will  not  be  permitted  to  show  by  oral  testimony  that  his 
written  agreement,  understaridingly  entered  into,  was  not  in  fact  to  be 
binding  upon  him.  And  so  it  has  been  held  in  Hypes  v.  Griffin,  89  111. 
134,  and  in  Powers  v.  Briggs,  79  111.  493 ;  that  where  the  trustees  of 
a  church  corporation  made  a  note  in  their  individual  names,  although 
they  were  described  as  trustees,  parol  evidence  was  inadmissible  to 
show  that  it  was  the  intention  to  make  an  indebtedness  of  the  church 
corporation.  But  there  is  also  another  principle  that  where  a  party 
signs  his  name  as  the  agent  or  officer  of  a  corporation  in  the  ordinary 
course  of  business,  if  it  appears  that  it  is  the  obligation  of  the  cor- 
poration the  officer  is  not  personally  liable,  and  that  the  facts  may  be 
shown  by  extrinsic  evidence. 

As  was  said  in  Scanlan  v.  Keith,  supra: 

"Most  generally  there  is  that  on  the  face  of  the  instrument  itself, 
*  *  *  that  indicates  unmistakably  it  is  the  obligation  of  the  cor- 
poration. It  is  seldom  any  one  takes  such  paper  under  the  belief  it  is 
the  obligation  of  the  officers  executing  it  on  the  behalf  of  the  cor- 
poration. But  parol  testimony  is  admissible  to  establish  the  facts, 
collateral  though  they  may  sometimes  be,  that  will  make  it  appear  past 
all  doubt  whose  obligation  it  is." 

In  Keidan  v.  Winegar,  95  Mich.  Rep.,  the  court  discusses  the  general 
propositions  in  such  apt  words  that  we  quote  from  the  opinion  at  some' 
length : 

"As  is  so  often  said,  it  is  the  intent  of  the  parties  which  is  to  be 
carried  out  by  the  court.  The  rule  that  rejects  words  added  to  the 
signature  is  an  arbitrary  one.    Its  reason  is  not  so  much  that  the  words 


798  Cases  on  Evidence 

are  not,  or  may  not  be,  suggestive,  but  that  they  are  but  suggestive, 
and  the  instrument,  as  a  whole,  is  not  sufficiently  complete  to  point  to 
other  parentage.  The  very  suggestiveness  of  these  added  words  has 
given  rise  to  an  irreconcilable  confusion  in  the  authorities  as  to  the 
legal  effect  of  such  an  instrument.  Extrinsic  evidence,  therefore,  is 
admissible  in  such  case,  betwen  the  immediate  parties,  to  explain  a 
suggestion  contained  on  the  face  of  the  instrument,  and  to  carry  out 
the  contract  actually  entered  into  as  suggested,  but  not  fully  shown, 
by  the  note  itself.  The  presumption  that  persons  dealing  with  negotia- 
ble instruments  take  them  on  credit  of  the  parties  whose  names  appear 
should  not  be  absolute  in  favor  of  the  immediate  payee,  from  whom  the 
consideration  passed,  who  must  be  deemed  to  have  known  all  the  facts 
and  circumstances  surrounding  the  inspection  of  the  note,  and  with 
such  knowledge  accepted  a  note  containing  such  a  suggestion," 

Applying  these  general  statements  to  the  particular  case  before  us, 
it  may  be  said  that  while  plaintiff,  by  the  introduction  of  the  note, 
made  a  prima  facie  case  against  the  defendants  individually,  yet  the 
court  properly  permitted  the  defendants  to  introduce  evidence  outside 
the  note  to  prove  the  matters  of  defense  set  forth  in  their  affidavit  of 
merits. 

Reversed  and  remanded  on  this  ground. 


STANLEY  v.  FIREMAN'S  INSURANCE  COMPANY 
34  R.  I.  4pi.     (1912) 

Vincent,  J.  This  is  an  action  of  assumpsit  brought  to  recover  the 
amount  due  under  a  policy  of  insurance  issued  by  the  defendant  com- 
pany to  the  plaintiff.  The  case  is  now  before  the  court  on  exceptions 
to  the  decision  of  the  Superior  Court  sustaining  the  defendant's  de- 
murrer to  the  plaintiff's  second  amended  declaration. 

The  policy  in  question  was  issued  to  the  plaintiff  in  his  individual 
name,  although  he  now  alleges  that  it  was,  in  fact,  procured  for  the 
benefit  of  himself  as  administrator  and  of  Roger  R.  Ramsey,  the  sole 
heir-at-law  of  Sarah  E.  Stanley. 

The  plaintiff  further  alleges  that  the  agent  of  the  defendant  who 
negotiated  the  contract  of  insurance  and  wrote  the  policy  knew  that 
said  policy  was  intended  to  cover,  and  agreed  that  it  should  cover,  the 


The  Parol  Evidence  Rule  799 

plaintiff's  interest  as  administrator  and  also  the  interest  of  the  heir- 
at-law. 

The  plaintiff  contends  that  he  is  entitled  to  offer  parol  testimony 
in  support  of  these  allegations  and  that  upon  sufficient  proof  of  the 
alleged  agreement  and  understanding,  between  himself  and  of  the  de- 
fendant's agent,  he  would  have  the  right  to  recover  for  the  loss  which 
he  has  sustained  as  administrator  and  also  for  the  loss  sustained  by 
the  heir-at-law,  notwithstanding  the  fact  that  the  written  instrument, 
by  its  terms  covers  nothing  more  than  the  individual  interest  of  the 
plaintiff.  There  can  be  no  doubt  that  if  it  had  been  indicated  in  the 
policy  that  the  same  was  issued  for  the  benefit  of  the  plaintiff  as  ad- 
ministrator and  of  Roger  R.  Ramsey,  or  even  if  the  policy  had  con- 
tained some  language  indicating  or  suggesting  other  and  distinct  in- 
terests, that  parol  testimony  might  properly  be  offered  to  show  who  the 
parties  were  as  well  as  the  extent  of  their  interest. 

The  general  rule  is  that  a  policy  made  in  the  name  of  a  particular 
person  will  not  protect  the  interest  of  any  other  person,  unless  it  con- 
tains some  words  which  indicates  that  it  is  intended  that  the  interest 
of  some  other  person  be  covered.  CoUey's  Briefs  on  the  law  of  Ins., 
Vol.  I,  p.  787,  and  cases  cited. 

In  Higginson  v.  Dall,  13  Mass.  96,  the  court  in  its  opinion  said,  "the 
policy  itself  is  considered  to  be  the  contract  between  the  parties  and 
whatever  proposals  are  made,  or  conversations  had  between  the  parties 
prior  to  the  subscription,  they  are  to  be  considered  as  waived  if  not 
inserted  in  the  policy,  or  contained  in  a  memorandum  annexed  to  it." 

In  Insurance  Co.  v.  Lyman,  15  Wall.  664,  Mr.  Justice  Miller  said, 
"Undoubtedly  a  valid  verbal  contract  for  insurance  may  be  made,  and 
when  made,  and  when  it  is  relied  on,  and  is  unembarrassed  by  any 
written  contract  for  the  same  insurance,  it  can  be  proved,  ♦  *  * 
as  in  all  other  cases  when  contracts  may  be  made  either  by  parol  or  in 
writing.  But  it  is  also  true  that  when  there  is  a  written  contract  of 
insurance  it  must  have  the  same  effect  as  the  adopted  mode  of  ex- 
pressing what  the  contract  is,  that  it  has  in  other  classes  of  contracts, 
and  must  have  the  same  effect  in  excluding  parol  testimony  in  its 
application  to  it  that  other  written  instruments  have.  *  *  *  To 
permit  the  plaintiffs,  therefore,  to  prove  by  parol  that  the  contract  of 
insurance  was  actually  made  before  the  loss  occurred,  though  executed 
and  deHvered  and  paid  for  afterwards,  is  to  contradict  and  vary  the 
terms  of  the  policy  in  a  matter  material  to  the  contract,  which  we  un- 
derstand to  be  opposed  to  the  rule  on  that  subject  in  the  law  of  Louisi- 
ana as  well  as  at  the  common  law.     The  doctrine  is  too  well  settled 


8oo  Cases  on  Evidence 

that  all  previous  negotiations  and  statements  are  merged  and  included 
in  the  assent  to  the  written  instruments  as  expressing  the  agreement." 

Many  other  authorities  recognized,  to  the  same  effect,  might  be  cited 
were  it  necessary  to  do  so. 

Numerous  authorities  recognize  the  admissibility  of  parol  testimony 
in  explanation  of  the  written  instrument,  when  its  terms  are  incom- 
plete or  ambiguous,  as  for  instance,  where  the  insurance  is  effected 
and  the  policy  issued  "for  whom  it  may  concern,"  or  for  the  "owners" 
of  a  vessel  or  cargo,  parol  testimony  may  be  offered  to  show  who  the 
parties  in  interest,  or  the  owners,  are.  But  none  of  the  cases  cited 
upon  the  plaintiff's  brief  support  his  contention.  None  of  them  go 
to  the  extent  of  holding  that  a  person  who  is  not  named  in  the  policy 
and  whose  existence  is  not  even  suggested  therein  can,  through  the  aid 
of  parol  testimony,  make  himself  a  party  to  the  contract  and  obtain 
the  benefits  of  its  provisions. 

We  think  that  the  introduction  of  parol  testimony,  in  accordance  with 
the  plaintiff's  contention,  showing  circumstances  and  verbal  under- 
standings and  agreements,  between  the  plaintiff  and  defendant's  agent, 
prior  to  the  execution  and  delivery  of  the  policy,  would  in  effect  be 
founding  a  right  of  action  on  a  parol  variation  of  a  written  contract 
and  would  be  an  attempt  to  reform  a  written  contract  in  an  action  at 
law,  which  under  the  great  weight  of  authority  he  cannot  be  permitted 
to  do.  If  the  plaintiff  desires  to  reform  his  contract  he  must  do  so 
through  a  court  of  equity  and  not  in  an  action  at  law. 

The  plaintiff's  exceptions  are  overruled,  and  the  case  is  remitted  to 
the  Superior  Court  for  further  proceedings  not  inconsistent  with  this 
opinion. 


TOWN  v.  JEPSON. 
133  Mich.  673.     (1903) 

Assumpsit  by  Lewis  S.  Town  against  Merton  K.  Jepson  and  Edward 
Jepson  copartners  as  Jepson  Bros.,  for  a  breach  of  contract  for  the  sale 
of  fruit.  From  a  judgment  for  defendants,  plaintiff  brings  error. 
Affirmed. 

Carpenter,  J.  On  the  28th  of  September,  1898,  the  parties  to  this 
suit  entered  into  a  written  contract. 

Plaintiff  contends  that  the  court  erred  in  permitting  defendants  to 


The  Parol  Evidence  Rule  8oi 

prove  that,  after  the  contract  was  entered  into,  it  was  agreed  that 
shipments  of  loo  fifty-pound  boxes  might  be  made  by  them.  This 
testimony  was  clearly  admissible.  See  Summers  v.  Wagner,  87  Mich. 
272  (49  N.  W.  570)  ;  Freese  v.  Arnold,  99  Mich.  13  (57  N.  W.  1038). 

Neither  can  we  agree  with  plaintiff  that  parol  testimony  show- 
ing the  agreement  that  the  draft  should  be  paid  at  Manchester  was 
incompetent.  This  evidence  did  not  tend  to  vary  the  contract.  The 
contract  contained  these,  and  only  these,  terms :  "Sight  draft,  with  bill 
of  lading  attached."  It  was  not  only  competent,  but  proper,  for  the 
parties  to  determine  by  an  oral  agreement  upon  whom  these  drafts 
should  be  drawn,  and  where  they  should  be  presented.  Liggett  Spring 
&  Axle  Cp.  V.  Michigan  Buggy  Co.,  106  Mich.  445  (64  N.  W.  466J  ; 
National  Cash  Register  Co.  v.  Blumenthal,  85  Mich.  464  (48  N.  W. 
622). 

The  judgment  will  be  affirmed,  with  costs. 

The  other  Justices  concurred. 


BONICAMP  V.  STARBUCK. 
25  Okla.  483.     (1910) 

Action  by  W.  H.  Starbuck  against  John  Bonicamp.  Judgment  for 
plaintiff,  and  defendant  brings  error.     Reversed  and  remanded. 

Turner,  J.  On  May  2,  1910,  W.  H.  Starbuck,  defendant  in  error, 
sued  John  Bonicamp,  plaintiff  in  error,  in  the  Probate  Court  of  Kay 
County  in  damages  for  the  alleged  breach  of  a  lease,  dated  November 
I,  1905,  wherein  the  latter  undertook  to  lease  to  the  former  for  a 
period  of  five  years  from  date  a  two  story  building  of  certain  dimen- 
sions located  in  Blackwell,  Okla.,  "at  a  monthly  rent  of  $70  per  month, 
said  sum  to  be  increased  at  the  rate  of  15%  of  the  sum  expected  by 
the  first  party  for  purchase  price  and  improvements  in  excess  of  the 
sum  of  $4,550;  first  party  to  make  all  necessary  improvements  and 
repairs  to  put  property  in  first-class  condition  to  be  occupied  as  a  first- 
class  hotel.  Parties  to  this  contract  to  agree  on  the  improvements 
necessary  thereof."  After  answer  admitting  the  execution  of  the 
lease  and  a  general  denial  and  reply  thereto  filed,  there  was  trial  by 
a  jury,  which  resulted  in  a  judgment  for  plaintiff  for  $817.50,  and  on 
second  trial  for  $640,  and  after  motion  for  a  new  trial  filed  and  over- 


8o2  Cases  on  Evidence 

ruled,  to  which  defendant  excepted  he  brings  the  case  here  for  review 
by  petition  in  error  and  case  made. 

To  maintain  the  issues  on  his  part,  plaintiff,  among  other  things, 
introduced  in  evidence  the  lease  providing  as  aforesaid,  proved  that 
defendant  had  refused  him  possession  thereunder  and  had  leased  the 
premises  to  another,  and,  pursuant  to  allegations  in  his  petition  over 
the  objection  of  defendant,  was  permitted  to  introduce  parol  testimony 
in  effect  that  shortly  after  the  execution  and  delivery  of  the  lease  plain- 
tiff and  defendant  agreed  on  what  improvements  and  repairs  were  to  be 
placed  in  said  building  to  be  put  in  first-class  condition  to  be  occu- 
pied as  a  first-class  hotel,  which  was,  among  other  things,  that  a  bake- 
shop  should  be  built  in  the  rear  of  the  premises,  that  the  building 
should  be  painted  and  finished,  the  necessary  partitions  put  up,  sewer- 
age and  waterworks  connection  made,  and  that  the  rent  of  the  prem- 
ises thereafter  should  be  $90  per  month. 

It  is  contended  by  plaintiff  in  error  that  the  court  erred  in  admitting 
said  testimony,  because  he  says  that  the  terms  of  said  lease  could  not 
be  altered  except  by  a  contract  in  writing,  and  therefore  the  judgment 
is  contrary  to  law.  The  testimony  is  objectionable  for  the  reason  that 
a  lease  for  five  years  is  one  required  by  the  statute  of  frauds  to  be 
in  writing,  which  must  contain  the  whole  contract.  To  permit  a  party 
to  sue  partly  on  a  written  and  partly  on  an  oral  agreement,  as  is  here 
attempted,  would  be  in  direct  contravention  of  the  statute,  i  Beach  on 
Contracts,  *S79>  ^^ys  down  the  rule  as  stated  and  in  section  577  says : 

"It  is  also  the  general  rule  that  the  evidence  necessary  to  take  the 
contract  out  of  the  statute  of  frauds  must  be  furnished  by  the  wi;itings ; 
parol  evidence  not  being  admissible  to  supply  evidence  not  found  in  the 
writings." 

The  lease  providing,  as  it  does  in  effect,  that  plaintiff  was  to  make  all 
necessary  improvements  and  repairs  to  put  the  premises  in  first-class 
condition  to  be  occupied  as  a  first-class  hotel,  and  that  the  parties 
thereto  were  thereafter  to  agree  on  what  improvements  and  repairs 
were  necessary  so  to  do,  standing  alone  was  incapable  of  enforcement 
for  uncertainty,  for  the  reason  that  on  its  face,  it  left  some  essential 
terms  to  be  agreed  on  in  the  future.  Ringer  v.  Holtzclaw,  112  Mo. 
519,  20  S.  W.  800;  Dayton  v.  Stone,  iii  Mich.  196,  69  N.  W.  515; 
Bumpus  V.  Bumpus,  53  Mich.  346,  19  N.  W.  29;  Wardell  v.  Williams, 
62  Mich.  50,  28  N.  W.  796,  4  Am.  St.  Rep.  814;  Gates  v.  Gamble, 
53  Mich.  181,  18  N.  W.  631.  Recognizing  this  fact,  defendant  sought 
to  sustain  his  cause  of  action  by  a  subsequent  oral  contract,  the  subject- 
matter  of  which  is  found  in  the  original  writing,  while  the  contract 


Th^  Parol  Evidence  Rule  803 

itself  is  found  in  the  subsequent  oral  agreement  sought  to  be  proved, 
connecting  itself  with  the  writing  as  a  part  of  its  terms.  To  enforce 
s-aid  contract  would  practically  annul  our  statute,  supra,  and  the  statute 
of  frauds.  If  a  part  of  the  entire  contract  is  void  under  the  statute,  it 
is  void  in  toto  (Fuller  v.  Reed,  38  Cal.  99),  and  thereby  becomes  re- 
duced to  the  grade  of  a  mere  unwritten  contract  (Dana  &  Henry  v. 
Hancock,  30  Vt.  616).  ^uch  subsequent  oral  agreement  varied  thfe 
terms  of  the  writing  contained  in  the  lease,  and  plaintiff  cannot  recover 
upon  said  writing  as  thus  qualified. 

Hence  we  conclude  that  the  testimony  was  improperly  admitted,  and 
the  judgment  contrary  to  law,  in  that  it  was  based  upon  a  parol  con- 
tract void  under  the  statute  of  frauds,  and  are  of  the  opinion  that  the 
case  should  be  reversed. 

All  the  Justices  concur. 


MOREHOUSE  V.  TERRILL. 
Ill  III.  App.  460.    (1903) 

Statement  by  the  court.  This  was  an  action  on  the  case  to  cover 
damages  from  appellant  for  his  having  wilfully  induced  one  Dooley 
to  break  a  contract  he  had  entered  into  with  appellee  for  the  purchase 
of  some  real  estate.  ' 

On  or  about  May  18,  1900,  appellee  accepted  verbally  a  written 
proposition  of  that  date  made  him  by  appellant  and  providing  for  an 
exchange  of  the  latter's  farm  in  McLean  County,  Illinois,  subject  to 
an  incumbrance  of  $4,000,  for  the  former's  house  and  lot  known  as 
1257  Fulton  avenue,  in  Chicago,  subject  to  an  incumbrance  of  $4,250 
and  a  payment  of  $2,000.  Appellant  was  to  furnish  an  abstract  show- 
ing a  good  title  in  him  to  the  lot  by  the  Security  Title  and  Trust  Com- 
pany. 

This  contract  was  superseded  by  a  more  formal  one  under  the  seals 
of  the  parties,  dated  May  22,  1900,  which  imposed  upon  appellee  the 
additional  obligations  of  also  furnishing  an  abstract  of  title,  each 
party  to  hand  his  abstract  to  the  other  within  six  days  from  the  date 
of  the  contract,  and  deeds  to  be  passed  and  the  deal  closed  on  or  be- 
fore June  I,  1900. 

By  a  written  contract,  also  dated  May  22,  1900,  appellee  agreed  to 
sell  to  William  H.  Dooley,  and  he  agreed  to  buy  from  appellee,  the 


8o4  Casks  on  Evidence 

farm  of  appellant  for  $9,000,  appellee  to  furnish  an  abstract  showing 
good  title  in  him  to  the  farm,  except  as  to  the  $4,000  incumbrance 
which  the  purchaser  was  to  assume;  deed  to  be  delivered  to  Dooley 
on  or  before  June  i,  1900,  at  which  time  he  agreed  to  pay  appellee, 
in  cash,  $5,000,  being  the  difference  between  the  purchase  price  and 
the  incumbrance.  By  falsely  representing  to  Dooley  that  the  contract 
between  appellant  and  appellee  "had  fallen  through,"  appellant,  on 
May  27,  1900,  procured  Dooley  to  break  his  contract  with  appellee, 
and  then  violated  his  own  contract  with  the  latter  by  selling  and  con- 
veying the  farm  to  Dooley  for  $9,000  without  appellee's  knowledge 
and  thereby  causing  him  a  loss  of  at  least  $2,000  which  appellee  would 
have  made  as  profit  if  appellant  had  conveyed  the  farm  to  him. 

The  jury  were  instructed  inter  alia  that  they  might  award  punitive 
damages  against  appellant  if  they  found  that  he  had  acted  maliciously 
in  the  premises.  There  was  a  verdict  and  judgment  against  him  for 
$2,000. 

Mr.  Justice  Stein  delivered  the  opinion  of  the  court. 

The  second  contract  between  appellant  and  appellee  was  executed 
in  duplicate.  Over  the  objection  of  appellant  the  court  received  proof 
that  after  the  execution  of  the  other  he  had  by  parol  waived  the  provi- 
sion of  the  contract  requiring  the  appellee  to  furnish  an  abstract  of 
title  to  his  lot.  Both  parties  treat  the  furnishing  of  such  abstract  (un- 
less waived)  as  a  condition  precedent  to  the  maintenance  of  the  ac- 
tion; and  assuming  this  to  be  the  law  (as  to  which  we  express  no 
opinion)  the  question  arises  \^hether  proof  of  the  parol  waiver  was 
admissible. 

It  is  the  long  established  law  of  this  state  that  the  terms  of  a  con- 
tract under  seal  cannot  be  varied  except  by  an  instrument  of  the  same 
dignity.  Ryan  v.  Cooke,  172  111.  302;  Starin  v.  Kraft,  174  111.  120, 
And  this  is  so  even  if  the  contract  would  have  been  valid  without  a 
seal.  Hume  v.  Taylor,  63  111.  43 ;  Leach  v.  Farnim,  90  111.  638.  But 
a  mere  waiver  of  a  term  or  condition  may  be  shown  where  it  is  in  the 
nature  of  a  release  or  a  discharge  and  leaves  the  contract  otherwise 
unchanged  and  introduces  no  new  element  into  it.  Mose  v.  Loomis, 
156  111.  392;  Starin  v.  Kraft,  supra;  Palmer  v.  Meriden  B.  Co.,  188 
111.  608;  Dauchy  Iron  Works  v.  Toles,  75  111.  App.  669;  Robinson  v. 
Nessel,  86  111.  212.  In  the  case  at  bar  the  waiver  operated  as  a  release 
of  the  provision  requiring  appellee  to  furnish  an  abstract  of  title  and 
was  proper  to  be  shown. 

The  circumstance  that  the  conversation  constituting  the  waiver  was 
held  betwen  the  execution  of  the  contract  and  that  of  the  duplicate 


The  Paroi,  Evidence  Rui,e  805 

original,  is  of  no  importance.  When  the  instrument  first  executed  by 
the  parties  had  been  signed  and  delivered,  there  was  a  valid  and  bind- 
ing contract  even  if  the  duplicate  had  not  been  executed.  Hence  the 
rule  that  a  written  contract  cannot  be  altered  or  modified  by  proof  of 
what  was  said  by  the  parties  before  or  during  the  making  of  it,  does 
not  apply. 

Reversed  and  remanded  on  another  ground. 


HEALY  v.  YOUNG. 
21  Minn.  389.     (1875) 


Action  for  rent  reserved  in  a  written  lease  of  the  Federal  Union 
printing  oflfice,  material,  etc.,  at  Rochester,  Minn.  Defense,  that  after 
the  rent  became  due,  the  plaintiif,  in  consideration  of  $1,500,  sold  to 
defendant  the  property  leased  and  relieved  him  from  liability  for  the 
rent  due.  At  the  trial  in  the  District  Court  for  Olmstead  County,  be- 
fore Mitchell,  J.,  defendants  had  a  verdict;  a  new  trial  was  refused, 
and  plaintiff  appealed. 

GiLFiLLAN,  C.  C.  In  this  case  there  are  two  points  made  by  appel- 
lant. First.  That  the  verdict  was  against  the  evidence.  Second. 
Error  of  the  court  below  in  admitting  evidence. 

The  action  was  to  recover  for  rent  of  certain  personal  property, 
under  a  contract  dated  February  i,  1873.  One  defence  was  that  about 
September,  1873,  the  plaintiff,  in  consideration  of  $1,500  paid  by  de- 
fendant Young  to  plaintiff,  sold  to  said  Young  the  property,  and  re- 
leased the  defendants  from  all  claims  which  he  might  have  against 
them  growing  out  of  said  contract,  and  especially  the  claim  set  up  in 
the  complaint.  It  is  in  respect  to  this  defense  that  the  alleged  errors 
arise. 

There  was  a  motion  for  a  new  trial  before  the  judge  who  tried  the 
cause;  and  on  looking  over  the  evidence,  we  think  there  was  such  a 
conflict  as  to  the  release,  that,  unless  there  was  error  in  admitting  the 
evidence,  the  verdict  ought  not  to  be  set  aside.  The  sale  of  the  prop- 
erty by  plaintiff  to  Young  was  by  a  bill  of  sale  in  writing,  in  the  follow- 
ing words :  "For  value  received,  and  for  and  in  consideration  of  the 
sum  of  fifteen  hundred  dollars  paid  and  secured  to  me,  the  receipt  of 
which  is  hereby  acknowledged,  I  have  and  do  hereby  sell,  assign  and 
transfer  unto  H.  H.  Young  all  and  singular  the  property  known  as  the 


8o6  Cases  on  Evidence 

Federal  Union  printing  office,  at  Rochester,  Minnesota,  including  all 
material,  and  all  sums  due  said  newspaper;  said  Young  to  pay  all 
debts  owing  by  said  office,  or  on  account  of  its  business,  while  in  my 
control. 

"Attest:  Geo.  Healy." 

"R.  A.  Jones." 

The  defendant,  having  introduced  this  bill  of  sale,  then  offered  oral 
testimony  to  prove  the  release  of  the  claim  for  rent,  and  the  question 
is.  Was  such  testimony  competent?  There  is  no  question  made  as  to 
the  rule  that  where  a  contract  is  reduced  to  writing,  parol  evidence  is 
inadmissible  to  contradict  or  vary  it.  But  to  give  the  writing  this 
conclusive  effect,  the  agreement  itself  must  be  reduced  to  writing. 
The  rule  does  not  apply  where  the  written  agreement  is  merely  given 
in  part-performance  of  the  contract.  The  theory  of  the  defendant  is 
that  the  plaintiff  agreed  to  release  the  debt  and  convey  the  property, 
and,  in  part-performance  of  that  agreement,  made  the  bill  of  sale.  As 
the  agreement  to  release  relates  to  an  entirely  different  subject-matter 
from  that  covered  by  the  bill  of  sale,  this  theory,  so  far  as  it  presents 
the  question  of  law,  is  correct.  The  case  is  not  distinguishable  from 
Clarke  v.  Tappin,  32  Conn.  56;  Baker  v.  Bradley,  42  N.  Y.  316;  and 
Jordan  v.  White,  20  Minn.  91.  It  is  distinguishable  from  Cook  v. 
Finch,  19  Minn.  407;  for,  in  that  case,  it  was  attempted  to  show,  by 
parol,  that  a  bill  of  sale  was  intended  to  pass  property  not  specified 
in  it. 

We  think,  therefore,  the  order  denying  a  new  trial  should  be  affirmed. 


PHELPS  v.  ABBOTT. 
114  Mich.  88.     (1897) 


Montgomery,  J.  Plaintiff  and  defendant  were  in  1886  and  1887, 
both  breeders  of  blooded  cattle.  The  plaintiff  resided  near  Pontiac,  and 
the  defendant  at  Lapeer.  In  April,  1887,  plaintiff  had  a  public  sale  of 
stock  at  Pontiac,  at  which  defendant  was  a  bidder,  and  became  the  pur- 
chaser of  a  cow  and  calf  at  $300,  and  a  heifer  for  $195.  After  the  sale 
defendant  gave  his  note  to  plaintiff  for  the  sum  of  $495,  due  in  one  year 
the  note  being  in  the  usual  form  of  a  negotiable  promissory  note. 
Shortly  thereafter  the  heifer  was  returned,  and  the  purchase  price, 
$195,  credited  on  the  note.    This  action  is  brought  to  recover  the  resi- 


The  Parol  Evidence  Rui.e  807 

due  of  the  note  $300,  and  interest.  The  defense  set  up  is  that,  in  the 
spring  of  1886,  defendant  purchased  of  plaintiff  a  thoroughbred  Here- 
ford heifer  named  Rosabel  at  the  price  of  $300,  and  gave  his  note  in 
payment ;  that  Rosabel  was  purchased  for  breeding  purposes,  but  proved 
to  be  barren ;  that,  prior  to  the  public  sale  in  1887,  defendant  informed 
plaintiff  that  Rosabel  was  barren;  and  that  the  cow  and  calf  and  heifer 
bought  in  1887  were  purchased  by  defendant  relying  upon  a  statement 
then  made  by  the  plaintiff  to  defendant  that,  if  future  developments 
disclosed  that  Rosabel  was  in  fact  barren,  plaintiff  would  adjust  the 
purchase  price  which  defendant  had  agreed  to  pay  for  Rosabel  in  any 
way  that  defendant  thought  would  be  right,  and  that  such  adjustment 
would  be  made  by  allowing  such  credit  on  the  note  in  suit  as  defend- 
ant should  think  just  and  right,  if  said  heifer  Rosabel  in  fact  proved 
barren.    This  defense  prevailed  in  the  circuit,  and  plaintiff  brings  error. 

The  testimony  by  which  defendant  made  his  case  was  given  by 
himself. 

But  we  think  it  was  not  competent  to  vary  the  terms  of  this  note  by 
showing  by  parol  an  agreement  to  reduce  the  amount  agreed  to  be  paid 
by  the  amount  of  damages  which  defendant  may  have  sustained  by 
reason  of  the  heifer  Rosabel  having  turned  out  to  be  barren.  The 
note  was  absolute  in  form.  By  it  defendant  promised  to  pay  a  definite 
sum  at  a  definite  time.  The  testimony  offered  was  for  the  purpose 
of  showing  that  this  sum  was  not  payable  absolutely,  but  that  in  a 
certain  event  a  less  sum  was  to  be  accepted  in  discharge  of  the  note. 
It  is  a  general  rule  of  law  that  parol  evidence  is  inadmissible  to  vary 
or  contradict  a  written  contract ;  therefore,  if  a  bill  or  note  be  absolute 
upon  its  face,  no  evidence  of  a  verbal  agreement  made  at  the  same 
time,  qualifying  its  terms,  can  be  admitted,  i  Daniel,  Neg.  Inst.  sec. 
80.  It  cannot  be  shown  that  the  sum  agreed  to  be  paid  was  different, 
nor  that  an  additional  sum  agreed  to  be  paid  was  different,  nor  that  an 
additional  sum  was  to  be  paid  in  a  certain  contingency,  nor  that  a 
certain  sum  was  to  be  deducted  from  the  note,  or  the  value  of  a  certain 
article  credited  upon  it.    Id.  sec.  81. 

It  is  true  that  it  is  always  competent  to  show  by  parol  a  total  or  par- 
tial failure  of  consideration,  or  that  fraud  or  illegality  taints  the  instru- 
ment. But  the  parol  undertaking  attempted  to  be  shown  in  the  present 
case  does  not  fall  within  these  apparent  exceptions.  It  must  be  kept 
in  mind  that  in  case  the  attempt  is  not  to  assert  a  set-oft*.  Defendant's 
claim,  if  any,  was  unliquidated.  The  defense  was  possible  in  this  ac- 
tion only  if  the  defendant  could  attach  his  alleged  agreement  to  the 
note  itself,  and  show  that  plaintiff  had  agreed  to  reduce  the  amount 


8o8  Cases  on  Evidence 

of  the  note  by  such  a  sum  as  should  be  found  his  due  on  the  original 
transaction,  if  any.  Nor  was  there  a  failure  of  consideration  for  the 
note.  The  attempt  is  to  show  that  the  promise  which  was  made  in 
writing  is  not  in  truth  the  promise  which  defendant  made.  We  think, 
under  the  authorities  cited,  this  should  be  held  incompetent. 

Judgment  reversed,  and  a  new  trial  ordered. 


GERMANIA  BANK  OF  MINNEAPOLIS  v.  C.  F.  OSBORNE. 
8i  Minn.  2^2.     (1900) 

Lewis,  J.  Action  on  a  promissory  note  for  $400,  due  ninety  days 
after  date,  payable  in  United  States  gold  coin  or  its  equivalent,  with 
interest. 

To  the  complaint  on  this  note  defendant  alleged,  as  a  "defense  and 
counterclaim,"  that  to  induce  the  defendant  to  purchase  four  shares 
of  its  capital  stock,  so  that  he  might  continue  to  be  one  of  the  directors 
of  the  bank,  the  plaintiff  agreed  with  defendant  that,  if  he  would  pur- 
chase the  four  shares,  it  would  receive  as  the  purchase  price  thereof 
defendant's  promissory  note  for  $400,  payable  ninety  days  after  date, 
with  interest  at  three  per  cent,  per  annum,  and  renew  the  same  from 
time  to  time  as  it  became  due  by  accepting  and  receiving  a  new  note 
of  like  tenor  and  effect ;  that  at  any  time  defendant  ceased  to  be  di- 
rector of  said  bank,  plaintiff  would  take  back  and  repurchase  the  same 
and  pay  the  same  price  paid  by  defendant  therefor,  surrendering  and 
delivering  to  him  said  note  so  given  as  the  purchase  price  of  said 
stock,  or  any  note  for  $400  given  by  defendant  in  renewal  thereof; 
that,  in  pursuance  of  such  agreement,  the  stock  was  issued  to  defend- 
ant, and  he  gave  his  note  therefor  in  the  sum  of  $400,  and  that  the 
note  upon  which  the  action  is  based  was  the  last  renewal  of  the  same ; 
that,  long  prior  to  the  commencement  of  this  action,  defendant,  having 
resigned  as  director  of  said  bank,  and  being  desirous  of  returning, 
surrendering  and  reselling  the  stock  to  plaintiff,  offered  to  resell,  as- 
sign, transfer,  indorse,  and  surrender  the  same  to  plaintiff,  and  offer 
to  pay  the  interest  upon  the  note,  and  demanded  that  plaintiff  surrender 
and  deliver  the  note  to  defendant,  which  was  refused. 

Issue  having  been  joined,  when  the  cause  came  on  for  trial  in  the 
court  below  plaintiff  introduced  the  note,  and  rested;  whereupon  de- 
fendant attempted  to  prove  the  facts  set  forth  in  the  answer.     Ob- 


The  Parol  Evidence  Rule  809 

jection  was  made  upon  the  ground  that  the  examination  called  for  oral 
testimony  which  tended  to  vary  or  alter  the  terms  of  the  note.  The 
objection  was  sustained,  and  the  court  directed  a  verdict  for  plaintiff 
in  the  full  amount  of  the  note  and  interest.  From  an  order  denying 
his  motion  for  a  new  trial,  defendant  appeals. 

In  what  respect  written  contracts  may  be  affected  by  parol  testimony 
is  a  problem  frequently  confronting  the  practitioner  and  demanding 
the  attention  of  the  courts,  and  in  respect  to  that  particular  phrase 
of  its  application  involved  in  the  case  before  us  able  courts  have  ar- 
rived at  different  conclusions.  We  should  first  determine  what  the 
contract  was  between  these  parties,  and  what  relation  the  note  bears 
to  it.  The  contract  was,  in  substance,  a  sale  of  the  stock  in  considera- 
tion of  the  execution  and  delivery  of  the  note,  coupled  with  the  right 
to  return  the  stock  and  take  up  the  note.  The  note  expresses  only 
the  method  of  payment  in  case  the  maker  did  not  exercise  the  right  to 
return  the  stock.  The  note  is  in  terms  just  what  the  parties  agreed 
it  should  be.  The  contract  preceded  the  execution  and  delivered  as  a 
result  of  the  contract,  not  as  itself  the  contract.  The  consideration  for 
the  note  was  the  stock,  provided  the  maker  exercised  the  option  to  re- 
tain it. 

The  consideration  for  the  delivery  of  the  stock  was  the  payment  of 
$400,  according  to  the  terms  of  the  note,  provided  the  maker  exercised 
the  same  option.  Although  the  whole  transaction  was  an  entirety,  and 
the  agreement  for  the  sale  was  in  a  sense  contemporaneous  with  the 
execution  of  the  note,  yet  the  parties  did  not  reduce  the  agreement  for 
the  sale  to  writing  in  the  terms  of  the  note. 

In  the  case  before  us  the  defensive  matter  contained  in  the  answer 
is  set  forth  as  a  counterclaim,  and  affirmative  relief  is  demanded.  The 
evidence  in  support  of  the  counterclaim  tended  to  make  out  a  case 
which  would  defeat  the  collection  of  the  note,  but  it  did  not  change  its 
terms.  The  evidence  was  directed  to  the  right  to  enforce  payment, 
not  the  method  of  payment.  If  payment  could  be  enforced  at  all,  it 
must  be  according  to  the  terms  of  the  note.  Such  was  the  issue  ten- 
dered by  plaintiff.  But  there  was,  under  the  issue  tendered  by  the 
counterclaim,  the  question  of  the  right  to  enforce  payment  of  the  note. 
Hence  it  follows  that  the  evidence  offered  did  not  tend  to  change  the 
terms  of  the  written  instrument. 

Order  reversed  and  a  new  trial  granted. 


8io  Cases  on  Evidence 

GILBERT  &  CO.  v.  McGINNIS  et  al. 
114  Illinois.     (1885) 

Mr.  Justice  Mui^key  delivered  the  opinion  of  the  court: 

On  the  i6th  of  February,  1881,  Patrick  McGinnis,  the  appellee, 
sold  to  the  appellants,  Herbert  S.  Gilbert  &  Co.,  seven  thousand  bushels 
of  corn,  at  thirty-nine  cents  per  bushel,  to  be  delivered  in  the  months 
of  August  and  September  following.  As  a  part  of  the  same  agree- 
ment the  appellants  promised  to  make  advances  on  the  contract  to 
appellee  of  what  money  he  might,  from  time  to  time,  require,  A  short 
time  after  the  making  of  this  agreement,  appellee  called  on  the  appel- 
lants, at  their  business  house  in  Ottawa,  and  requested  an  advance  on 
the  contract,  as  per  agreement.  The  clerk  in  charge  of  their  business 
told  him  he  could  have  the  money,  and  commenced  writing  a  note  for 
the  amount,  whereupon  appellee  stated  to  the  clerk  he  would  not  sign 
a  note,  remarking,  in  effect,  that  if  he  wanted  to  obtain  money  in  that 
way  he  could  get  it  from  the  bank.  Appellants  refused  to  make  the 
required  advance  unless  appellee  would  give  his  note  for  the  amount. 
This  he  declined  to  do,  and  informed  the  clerk  at  the  time  he  would 
not  let  appellants  have  the  corn.  The  corn  not  having  been  delivered 
within  the  time  specified  in  the  agreement,  the  appellants,  on  the  3d 
day  of  October,  1881,  commenced  an  action  of  assumpsit,  against 
appellee,  in  the  Circuit  Court  of  La  Salle  County,  to  recover  damages 
for  the  non-delivery  of  the  corn,  which  resulted  in  a  judgment  in 
favor  of  the  defendant,  for  costs.  This  judgment  having  been  affirmed 
by  the  Appellate  Court  for  the  Second  District,  the  plaintiffs  appealed 
to  this  court. 

On  the  trial  the  plaintiffs  offered  to  show  there  was  a  general  cus- 
tom among  grain  merchants  to  take  notes  from  the  seller  for  the  amount 
of  advances  made  under  contracts  for  the  sale  of  grain,  like  the  one 
in  question.  They  also  proposed  to  prove  that  on  previous  occasions 
there  had  been  contracts  and  dealings  similar  in  character  to  the  one 
sued  upon,  and  that  the  rrianner  of  dealing  between  the  parties  was, 
when  an  advance  was  made,  memoranda  or  notes  should  be  taken  for 
the  money  advanced.  The  court  declined  to  admit  evidence  to  the  jury 
in  support  of  either  of  these  positions,  and  the  ruling  of  the  cojirt  in 
this  respect  presents  the  only  question  for  determination.  The  same 
question  is  raised  by  certain  refused  instructions  asked  on  behalf  of 
the  appellants. 

The  rule  is  well  recognized  that  where  a  commercial  contract  is  in 


The  Paroi.  Evidence  Rui^E  8ii 

any  respect  ambiguous,  a  particular  custom  or  usage  of  trade  known 
to  the  parties,  or  which,  under  the  circumstances,  they  are  presumed 
to  know,  or  any  previous  course  of  dealing  between  them  that  will 
have  a  tendency  to  disclose  the  real  intentions  of  the  parties,  and  to 
aid  the  court  in  arriving  at  its  true  construction,  will  be  admissible 
in  evidence.  Such  evidence  is  not  only  admissible  for  the  purpose  ot 
explaining  the  terms  of  a  contract,  but  also  for  the  purpose  of  in- 
grafting, as  it  were,  new  terms  into  it,  subject,  however,  to  the  qualifi- 
cation that  such  new  terms  are  not  expressly  or  impliedly  excluded 
by  the  express  agreement,  (i  Smith's  Leading  Cases,  307,  et  seq.) 
To  have  this  effect,  however,  the  usage  must  be  reasonable,  and  not  in 
conflict  with  any  general  rule  of  law.  (Macy  et  al.  v.  Wheeling  Ins. 
Co.,  9  Mete.  354.)  The  proof  offered  in  this  case  was  clearly  not  for 
the  purpose  of  explaining  any  ambiguity  in  the  contract,  or  for  the 
purpose  of  showing  that  some  particular  word  or  phrase  in  it  is  used 
out  of  its  ordinary  signification.  No  claim  of  this  kind  is  made.  It 
is  conceded  by  both  parties  that  appellants  were  to  make  advances — 
that  is,  let  appellee  have  money,  from  time  to  time,  as  he  might  need 
it,  under  the  contract.  So  far  there  is  no  controversy.  But  appel- 
lants contend  that  a  custom  or  usage  prevailed,  not  adverted  to  in  the 
express  agreement,  which  required  the  appellee  to  give  to  them  his 
note  upon  receiving  any  such  advances.  The  usage  here  sought  to  be 
shown,  it  is  clear,  was  for  the  purpose  of  adding  a  stipulation  on  the 
part  of  appellee  which,  it  is  conceded,  is  not  found  in  the  express 
agreement.  This,  as  we  have  already  seen,  may  sometimes  be  done ; 
but  whether  it  could  be  done  in  this  particular  case  depends  upon 
whether  the  stipulation  thus  to  be  added  is  inconsistent  or  in  conflict 
with  that  part  of  the  agreement  which  is  expressed,  and  about  which 
there  is  no  controversy.  We  are  clearly  of  opinion  that  it  is,  and  that 
the  trial  court  therefore  ruled  properly  in  excluding  the  evidence  and 
in  refusing  the  instructions  complained  of. 

An  advance  or  payment  of  money  on  a  contract  of  sale,  without 
doubt,  is  altogether  a  different  thing  from  that  of  obtaining  money 
from  the  purchaser  on  the  seller's  own  note.  The  legal  effect  of  the 
transaction  in  the  first  case  is  to  extinguish,  pro  tanto,  the  seller's 
claim  and  the  purchaser's  corresponding  liability.  In  the  second,  no 
part  of  either  is  extinguished.  Instead  of  collecting  something  on  his 
corn,  as  provided  by  the  agreement,  the  seller  is  offered  a  loan  of 
money  on  his  individual  note,  which  would  be  a  complete  change  of 
the  legal  relations  of  the  parties.  Whereas  the  seller  was,  before,  a 
mere  creditor  of  the  purchaser,  he  at  once,  upon  giving  such  a  note. 


8i2  Cases  on  Evidknce 

becomes  the  debtor  of  the  purchaser,  and  no  part  of  the  debt  due  him 
on  account  of  the  sale  is  thereby  discharged.  Thus  it  is  seen  the  legal 
effect  in  the  one  case  is  practically  the  very  opposite  of  what  it  is  in 
the  other,  and  might  in  many  cases  result  in  the  grossest  injustice. 
For  instance,  had  appellee  given  his  note  for  the  required  advance, 
the  appellants  might,  the  next  hour  thereafter,  b.ave  transferred  it  to 
another  for  value,  and  appellee  would  have  been  compelled  to  pay  it, 
whether  he  ever  got  a  cent  for  his  corn  or  not.  This  is  apparent. 
That  one  will  not  be  permitted  to  prove  a  custom  or  usage  the  effect 
of  which  will  be  to  add  to  an  express  agreement  a  condition  or  limita- 
tion which  is  repugnant  to  or  inconsistent  with  the  agreement  itself, 
will  hardly  be  questioned.  This  is  not  only  the  universally  received 
doctrine  on  the  subject,  but  it  has  been  often  fully  recognized  by  this 
court.  Cadwell  v.  Beek,  17  111.  220;  Bissel  v.  Ryan,  23  id.  566; 
Deshler  v.  Beers,  32  id.  368;  Wilson  v.  Bauman,  80  id.  493.  In  the 
editor's  note  to  Wigglesworth  v.  Dalleson,  Smith's  Leading  Cases, 
309,  it  is  said:  "Evidence  of  usage,  though  sometimes  admissible  to 
add  to  or  explain,  is  never  to  vary  or  to  contradict,  either  expressly 
or  by  implication,  the  terms  of  a  written  instrument," — citing  in  sup- 
port of  the  proposition,  Magie  v.  Atkinson,  2  M.  &  W.  442,  Adams  v. 
Worldley,  i  id.  374.  Freeman  v.  Loeder,  1 1  A.  &  E.  589,  and  Gates  v. 
Pym,  6  Taunt.  445.  The  rule  here  stated  is  equally  applicable  to  a 
verbal  contract,  where  the  terms  of  it  are  definitely  fixed,  as  they  are 
in  the  present  case. 

It  follows  from  what  we  have  said,  and  the  authorities  cited,  the 
judgment  of  the  Appellate  Court  must  be  affirmed. 

Judgment  affirmed. 


THE  BAGLEY  AND  SEWALL  COMPANY  v.  THE  SARANAC 
RIVER  PULP  AND  PAPER  COMPANY. 

755  N.  Y.  626.     (i8q2) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  third  judicial  department,  entered  upon  an  order  made  No- 
vember 30,  1891,  which  affirmed  a  judgment  in  favor  of  plaintiff,  en- 
tered upon  a  verdict  and  denied  a  motion  for  a  new  trial. 

This  was  an  action  to  recover  the  contract  price  for  certain  ma- 
chinery sold  by  plaintiff  for  defendant. 


Tnt,  Parol  Evidence  Rui<e  813 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

The  guaranty  for  the  breach,  of  which  the  defendant  sought  to 
counterclaim  damages,  is  contained  in  the  written  proposition  made  by 
the  plaintiff  to  the  defendant  October  30,  1888,  and  orally  accepted 
by  the  defendant,  for  the  sale  to  the  defendant  of  two  "wet  machines", 
to  be  used  in  the  manufacture  of  wood  pulp,  after  the  process  of 
grinding  the  pulp  had  been  done  by  other  machines  constructed  for 
that  purpose. 

The  clause  of  guaranty  is  as  follows :  "We  will  guaranty  the  above 
machines  to  take  care  of  all  the  pulp  produced  from  four  Scott  grind- 
ers, and  deliver  the  pulp  50  per  cent  dry."  When  the  proposition 
was  made,  the  defendant  was  engaged  in  erecting  a  pulp  mill  on  his 
premises,  and  had  contracted  with  the  manufacturer  of  the  Scott 
grinders  for  four  grinders  to  be  placed  in  the  mill.  They  were  subse- 
quently placed  in  teh  mill,  as  were  also  the  machines  purchased  from 
the  plaintiff. 

The  defendant,  in  support  of  its  contention,  gave  evidence  tending 
to  show  that'  the  machines  bought  of  the  plaintiff  would  not  take  care 
of  all  the  pulp  produced  by  the  four  grinders  placed  in  the  mill,  and 
deliver  it  fifty  per  cent  dry.  The  four  grinders  would  produce  about 
eight  tons  of  pulp  a  day,  and  the  machines  purchased  of  the  plaintiff, 
while  they  would  provide  for  that  quantity,  would  not  deliver  it  fifty 
per  cent  dry,  but  forty  to  forty-five  per  cent  dry.  It  was  established 
on  the  part  of  the  plaintiff  that  the  machines  would  take  care  of  at 
least  six  tons  of  pulp  per  day,  and  deliver  it  fifty  per  cent  dry,  being 
an  amount  equal  to  3,000  pounds  of  pulp  for  each  grinder. 

The  plaintiff  in  answer  to  the  alleged  counterclaim  was  permitted 
to  show  that  the  guaranty  was  given  upon  the  representation  of  the 
defendant  that  the  Scott  grinders,  for  which  they  had  contracted,  had 
a  capacity  of  producing  each  3,000  pounds  of  pulp  per  day,  and  that 
the  proposition  and  guaranty  were  based  upon  this  production.  The 
point  insisted  upon  in  behalf  of  the  defendant  is  that  this  evidence  was 
inadmissible,  because  in  violation  of  the  rule  excluding  oral  evidence 
to  contradict  a  written  contract.  Whether  this  evidence  was  in  viola- 
tion of  the  rule  invoked  is  the  main  question  in  the  case.  The  nego- 
tiation between  the  parties  did  not  have  its  inception  at  the  date  of 
the  proposition  (Oct.  30,  1888").  On  June  2y,  1888  the  defendant 
addressed  a  letter  to  the  plaintiff  saying:  "We  have  already  made  a 
trade  for  four  grinders,  that  are  guaranteed  each  to  make  3,000  pounds 
every  24  hours,  dry  weight,  and  now  we  want  to  get  a  press  to  take 
care  of  it."    In  another  letter  of  October  16,  1888,  the  defendant  said: 


8i4  Cases  on  Evidence 

"The  machines  we  are  putting  in  are  guaranteed  each  to  make  3,000 
pounds,  dry  weight,  pulp  each  24  hours,  or  the  four  machines  will 
turn  out  six  tons  a  day.  Now  will  one  of  your  72-in.  machines  take 
care  of  this  amount  of  pulp?"  The  conversation  between  the  parties 
concurrently  with  the  date  of  the  proposition  (Oct.  16,  1888),  shows 
that  the  guaranty  was  made  upon  the  basis  that  the  capacity  of  the 
Scott  grinders  to  be  placed  in  the  mill  was  3,000  pounds  per  day. 

The  inequity  of  the  alleged  counterclaim  is  apparent.  But  this  is 
no  answer  to  the  rule  of  law  invoked,  if  by  its  proper  application  it 
excludes  a  consideration  of  the  facts  referred  to. 

We  think  it  may  well  be  doubted  whether  the  letters  of  June  27, 
1888,  and  October  16,  1888,  may  not  be  considered  as  parts  of  the 
written  contract  for  the  sale  of  the  machines.  The  proposition  of 
guaranty  of  October  30,  1888,  was  its  culmination,  but  the  previous 
letters  of  the  defendant  explain  the  application  of  the  guaranty,  and 
being  themselves  in  writing  their  consideration  does  not  contravene 
the  principle  upon  which  oral  terms  are  forbidden  to  be  engrafted 
upon  written  contracts.  But  passing  this  we  are  of  opinion  that  the 
oral  evidence  was  competent  to  ascertain  and  define  the  capacity  of 
the  grinders  to  which  the  guaranty  related.  The  parties  were  con- 
tracting for  machines  which  would  take  care  of  the  pulp  produced 
by  "four  Scott  grinders,"  and  deliver  it  at  a  certain  dryness.  The 
amount  of  pulp  produced  depends,  as  the  evidence  shows,  upon  the 
capacity  of  the  grinders  and  the  power  applied.  Scott  grinders  are 
manufactured  of  varying  capacity.  The  plaintiff  had  no  knowledge 
of  the  capacity  of  the  grinders  which  were  to  be  placed  in  the  mill, 
except  as  informed  by  the  defendant.  It  would  be  unreasonable  to 
suppose  that  in  making  the  contract  with  the  plaintiff,  the  parties  con- 
tracted without  reference  to  the  capacity  of  the  grinders  to  be  used, 
or  that  by  the  words,  "all  the  pulp  produced  by  four  Scott  grinders," 
the  parties  intended  all  the  pulp  which  could  be  produced  by  any 
Scott  grinders  operated  with  any  power,  however  great.  The  ex- 
trinsic circumstances  show  that  they  had  reference  to  the  production 
of  the  four  grinders  contracted  for,  having  the  capacity  represented 
by  the  defendant. 

In  interpreting  the  guaranty,  parol  evidence  indentifying  the  ma- 
chines known  as  Scott  grinders  is  essential.  The  fact  that  the  grind- 
ers are  of  different  productive  capacity,  involves  the  further  inquiry, 
to  grinders  of  what  capacity  did  the  parties  refer?  This  we  think 
was  the  subject  of  explanation  by  parol  evidence.  Such  evidence  does 
not  contradict  the  written  contract,  nor  does  it  add  a  new  term  thereto. 


The  Parol  EvroENCE  Rule  815 

It  simply  makes  intelligible  what  needs  explanation,  full  force  is  given 
to  all  the  words,  without  adding  to  or  detracting  anything  therefrom. 
(See  Chapin  v.  Dobson,  78  N.  Y.  74;  Schmittler  v.  Simon,  114  id.  177; 
I  Green  Ev.  22^  et  seq.) 

The  parol  evidence  was  not  admitted  to  limit  the  guaranty  to  a  part 
of  the  product  of  the  Scott  grinders  which  the  parties  had  in  mind, 
but  to  show  the  particular  grinders  referred  to  and  their  capacity,  and 
that  the  contract  related  to  grinders  of  that  description. 

The  conclusion  we  have  reached  renders  it  unnecessary  to  consider 
any  of  the  other  questions  in  the  case.  The  facts  as  to  the  contem- 
poraneous oral  understanding  of  the  parties  and  the  other  extrinsic 
facts  are  undisputed,  and  the  plaintiff  was  entitled  to  judgment  thereon. 

The  judgment  below  is  therefore  affirmed,  with  costs. 


MAURIN  V.  LYON, 
dp  Minn.  2^^.     (1897) 


Action  in  the  District  Court  for  Stearns  County  by  Marcus  Maurin 
and  Peter  Maurin,  co-partners  as  Maurin  Brothers,  against*  George 
Tilestone  to  recover  the  purchase  price  of  1,520  bushels  of  wheat  sold 
by  plaintiffs  to  defendant  at  the  agreed  price  of  86  cents  per  bushel. 
Defendant  in  his  answer  set  up  a  counterclaim  for  $1,041.96,  alleged 
to  be  due  defendant  for  wheat  sold  to  plaintiffs  under  another  contract. 
The  case  was  tried  before  a  referee,  who  found  in  defendant's  favor 
on  his  counterclaim.  While  the  action  was  pending  defendant  died, 
and  D.  E.  Lyon,  his  executor,  was  substituted  as  defendant.  From 
an  order,  Searle,  J.,  denying  plaintiffs'  motion  for  a  new  trial,  they 
appealed.     Reversed. 

Mitchell,  J.  Defendant's  counterclaim  is  founded  on  an  alleged 
purchased  of  5,000  bushels  of  wheat  by  the  plaintiffs  from  the  de- 
fendant's testate,  Tileston.  The  principal  points  urged  by  the  plain- 
tiffs are  (i)  that  there  was  no  sufficient  memorandum  of  the  contract 
of  purchase  to  take  the  case  out  of  the  statute  of  frauds,  and  that 
parol  evidence  was  improperly  admitted  to  explain  the  terms  of  the 
written  memorandum;  (2)  that  the  alleged  purchase  was  the  indi- 
vidual transaction  of  the  plaintiff  Marcus  Maurin,  and  not  within  the 
scope  of  the  partnership  business. 


8i6  Cases  on  Evidence 

I.     The  written  memorandum  was  in  the  words  and  figures   fol- 
lowing : 

"St.   Cloud 
"7-6-96     * 

"Sold  Maurin  Bros. 
"Cold  Springs 
"5000,  1°  July  Del. 
"99  c.  Duluth 
"(Signed)  Geo.  Tileston  &  Co. 

"Maurin  Bros. 
Both  parties  were  engaged  in  buying  and  selling  grain,  and  were 
presumably  acquainted  with  technical  terms  of  the  trade.  The  Referee 
who  tried  the  cause  admitted,  over  the  objection  and  exception  of 
the  plaintiffs,  parol  evidence  that  in  the  trade,  among  buyers  and 
sellers  of  wheat,  the  character  "i°"  was  used  to  indicate  the  grade 
of  the  wheat,  and  meant,  "Grade  No.  i  Northern  wheat" ;  also,  that 
'July  Del."  meant  July  delivery  (that  is,  that  the  wheat  was  to  be 
delivered  during  July)  ;  that  "99  c.  Duluth"  indicated  the  price  per 
bushel  and  the  place  of  delivery  Duluth;  that  these  were  the  meanings 
of  the  characters  and  terms  used  in  the  memorandum,  as  understood 
by  the  usages  and  customs  of  the  trade  among  wheat  men. 

This  evidence  to  show  that  abbreviations,  and  apparently  ambiguous 
statements  of  description,  price,  etc.,  have  a  recognized  meaning  in 
the  trade,  and  hence  are  a  sufficient  statement  of  the  terms  of  the 
contract.  This  is  the  rule  as  to  various  abbreviations  and  apparent 
ambiguities  of  this  nature  in  brief  notes  of  mercantile  contracts  which 
are  often  composed,  to  use  the  language  of  Parje,  E.,  in  Marshall  v. 
Lynn,  6  Mees.  &  W.  109,  118,  in  "a  sort  of  mercantile  shorthand, 
made  up  of  few  and  short  expressions,  which  generally  express  the 
full  meaning  and  intention  of  the  parties."  Browne,  St.  Frauds,  §  380. 
See,  also,  Paine  v.  Smith,  33  Minn.  495,  24  N.  W.  305;  Olson  v. 
Harpless,  53  Minn.  91,  55  N.  W.  125;  Merchant  v.  Howell,  53  Minn. 
295,  55  N.  W.  125;  Merchant  v.  Howell,  53  Minn.  295,  55  N.  W.  131. 
The  parol  evidence  admitted  in  this  case  neither  varied  nor  added  to 
the  written  memorandum,  but  merely  translated  it  from  the  language 
of  the  trade  into  the  ordinary  language  of  people  generally.  The 
memorandum,  as  thus  translated,  fulfilled  all  the  requirements  of  the 
statute  of  frauds. 


The  Parol  EvidenciB  Rule  817 

LEBUS  V.  BOSTON  etc. 
loy  Ky.  p8.     (i8pg-ipoo) 

Judge  Burnham  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  appellant  against  appellees  to  recover 
damages  for  obstructing  a  passway  leading  from  a  public  highway  over 
the  lands  of  appellees  to  those  of  appellant,  and  to  enjoin  the  further 
interference  of  the  use  of  said  passway  by  appellant. 

It  is  earnestly  insisted  by  counsel  for  appellant  in  their  petition  for 
rehearing  that  parol  evidence  is  inadmissible  to  show  that  at  the  time 
of  the  conveyance  it  was  agreed  between  the  grantor  and  the  grantee 
that  there  was  no  necessity  for  the  passway,  as  the  grantor  had  another 
outlet  to  another  pike,  and  other  ways  to  get  out,  and  that  it  was  then 
agreed  that  there  was  to  be  no  passway  over  the  land  conveyed,  and 
the  deed  was  accepted  only  on  this  distinct  understanding.  Counsel 
insist  that  the  passway,  being  an  interest  in  land,  can  only  be  created 
or  destroyed  by  a  contract  or  agreement  in  writing,  and  that  to  admit 
the  parol  evidence  referred  to  is  to  depart  from  those  broad,  funda- 
mental principles  of  law  that  have  been  recognized  for  time  imme- 
morial. This  would  be  true  if  the  evidence  infringed  the  terms  of  the 
deed,  but  that  is  not  the  case.  The  grantor  by  his  deed  in  this  case 
conveyed  to  the  grantee  the  whole  boundary  of  land  described  in  the 
deed.  This  passed  the  entire  title  to  all  within  the  boundary  so  de- 
scribed, from  the  center  of  the  earth  usque  ad  caelum,  including  the 
ground  over  which  the  passway  ran.  The  passway  was  therefore 
included  by  the  terms  of  the  deed,  and  prima  facie  passed  under  it. 
But,  as  said  in  the  opinion,  the  one  exception  allowed  by  the  author- 
ities in  favor  of  a  grantor  where  he  has  conveyed  the  fee  of  land  "is 
ways  or  easements  of  necessity."  And,  as  is  well  said  by  the  learned 
author  there  quoted,  "it  is  only  in  cases  of  the  strictest  necessity,  and 
where  it  would  not  be  reasonable  to  suppose  that  the  parties  intended 
the  contrary,  that  the  principle  of  implied  reservation  can  be  invoked." 
(Jones  on  Easements,  section  136.)  Appellant's  entire  claim  to  the 
passway  rests  upon  this  doctrine  of  implied  reservation.  Whether 
this  is  a  case  of  strictest  necessity,  where  it  would  not  be  reasonable 
to  suppose  that  the  parties  intended  the  contrary,  the  court  can  only 
know  when  the  facts  are  shown  by  parol  evidence.  When  these  facts 
are  shown  by  parol  evidence,  then  the  presumption  of  an  implied 
reservation  arises.  But  it  is  well  settled  that  a  presumption  .raised 
by  parol  evidence  may  also  be  rebutted  by  parol  evidence.  The  rule 
is  thus  well  stated  in  3  Greenleaf  on  Evidence,  section  366 : 


8i8  Cases  on  Evidence 

"In  certain  cases  of  presumption  of  law,  also,  parol  evidence  is  ad- 
mitted in  equity  to  rebut  them.  But  here  a  distinction  is  to  be  ob- 
served between  those  presumptions  which  constitute  the  settled  legal 
rules  of  construction  of  instruments,  or,  in  other  words,  conclusive 
presumptions,  where  the  construction  is  in  favor  of  the  instrument, 
by  giving  to  the  language  its  plain  and  literal  effect,  and  those  presump- 
tions which  are  raised  against  the  instrument,  imputing  to  the  lan- 
guage, prima  facie,  a  meaning  different  from  its  literal  import.  In 
the  latter  class  of  cases  parol  evidence  is  admissible  to  rebut  the  pre- 
sumption and  give  full  effect  to  the  language  of  the  instrument,  but 
in  the  former  class,  where  the  law  conclusively  determines  the  con- 
struction, parol  evidence  is  not  admissible  to  contradict  or  avoid  it." 

In  Wharton  on  Evidence,  sections  973,  974,  the  same  rule  is  fully 
stated  and  illustrated. 

Though  the  terms  of  the  deed  prima  facie  convey  the  entire  bound- 
ary, including  the  passway,  parol  evidence  of  the  absolute  necessity 
of  the  passway  is  admitted  in  this  case  to  raise  a  presumption  against 
the  instrument,  imputing  to  it  a  meaning  different  from  its  literal  im- 
port. The  presumption  against  the  instrument  may  be  rebutted  by 
parol  evidence,  so  as  to  give  to  its  language  its  plain  and  literal  effect. 
The  proof  offered  by  appellant  to  show  the  necessity  of  the  passway 
might  be  rebutted  by  proof  that  it  was  unnecessary.  It  would  not, 
perhaps,  occur  to  counsel  that  parol  evidence  for  the  appellee  showing 
that  the  passway  was  unnecessary  would  be  inadmissible.  But  there 
is  no  better  proof  that  it  was  unnecessary  than  the  agreement  of  the 
parties  at  the  time  of  the  conveyance  that  the  grantor  had  another 
outlet,  and  did  not  need  this  one.  When  he  agreed  it  was  not  neces- 
sary, and  not  to  reserve  it,  in  order  to  induce  the  grantee  to  accept 
the  deed,  the  estoppel  may  be  shown  by  the  same  kind  of  evidence  as 
the  implied  right. 

Petition  overruled. 


BRICK  v.  BRICK. 
p8  U.  S.  514.     (1878) 


Mr.  Justice  Field  delivered  the  opinion  of.  the  court. 
In   1864,  between  the  7th  and  27th  of  September,  the  appellant, 
Samuel  R.  Brick,  a  resident  of  Philadelphia,  purchased  eight  hundred 


The;  Parol  Evidence  Rule  819 

and  ninety-two  shares  of  stock  in  the  Washington  Gas-light  Company, 
a  corporation  existing  in  the  District  of  Columbia,  chartered  by  Con- 
gress, paying  for  the  same  $17,277.  Of  this  stock,  two  hundred  and 
fifty  shares  were  afterwards  transferred  by  his  direction  on  the  books 
of  the  company  to  his  brother,  Joseph  K.  Brick,  a  resident  of  Brook- 
lyn, N.  Y.,  to  whom  a  certificate  was  issued  and  from  whom  a  check 
for  $5,250  was  received.  The  question  presented  is  whether  this 
transaction  between  the  brothers  was  a  sale  of  the  stock,  or  a  loan  of 
money  on  its  pledge.  Joseph  K.  Brick  is  dead,  and  the  evidence  as 
to  the  character  of  the  transaction  is  conflicting,  as  is  generally  the  case 
when  the  object  of  parties  in  the  execution  of  instruments  is  not  ex- 
pressed in  writing,  and  is  sought  years  afterwards  to  be  shown  by 
parol.  But  notwithstanding  such  conflict,  there  are  certain  facts  es- 
tablished, indeed  not  controverted,  which  must  control  our  judgment. 

In  the  first  place,  it  appears  that  in  September,  1864,  the  appellant 
was  anxious  to  purchase  stock  in  the  gas  company.  He  had  become 
acquainted  with  its  aflfairs,  and  knew  that  it  intended  to  apply  to 
Congress  for  power  to  increase  its  capital,  and  was  convinced  that 
with  such  increase  the  value  of  the  stock  would  be  greatly  enhanced. 
He  expressed  this  conviction  in  letters  to  his  son,  which  the  com- 
plainants produced ;  and,  acting  upon  it,  he  purchased  to  an  extent 
beyond  his  means  of  immediate  payment,  and  gave  his  note  for  a 
portion  of  the  purchase-money. 

In  the  second  place,  the  appellant  applied  to  his  brother,  Joseph, 
fof  a  loan  of  money,  at  the  time  he  was  expressing  his  anxiety  to  buy 
the  stock  of  this  company,  and  his  brother  replied  that  the  money 
could  be  raised  on  call.  It  was  not  many  days  afterwards  when  a 
check  for  the  $5,250  was  sent. 

In  the  third  place,  in  May  and  July,  1866,  Joseph  stated,  under 
oath,  that  he  was  not  the  owner  of  the  stock.  In  the  previous  year 
he  had  given  to  the  board  of  assessors  of  Brooklyn  a  statement  of 
his  personal  property,  in  which  he  had  specified  the  stock  of  the  gas- 
light company,  valuing  it  at  $5,000,  and  was  accordingly  assessed  upon 
it.  In  May,  1866,  he  made  oath  that  he  had  been  thus  erroneously 
assessed,  and  that  the  error  had  arisen  from  his  having  inserted  in 
the  statement  the  stock  held  by  him  for  his  brother,  in  which  he  had 
no  pecuniary  interest.  The  assessment  was  accordingly  corrected. 
On  the  same  day,  he  wrote  to  his  brother  what  he  had  done,  saying 
that  he  had  told  the  assessors  he  held  the  stock  for  the  latter's  benefit, 
and  requesting  him  to  advise  the  president  and  secretary  of  the  com- 
pany th?t  such  was  the  case.     And  in  the  statement  of  his  personal 


820  Cases  on  Evidence 

property  for  that  year,  made  in  July  following,  he  omitted  the  stock 
in  question,  and  verified  the  statement  with  his  oath  that  he  had  no 
personal  property  not  included  in  it. 

So  far  from  questioning  the  character  of  this  testimony,  the  com- 
plainants refer  to  it  in  their  bill,  annex  copies  of  the  oaths  taken,  and 
observe  that  the  stock  was  purchased  to  aid  Samuel  in  some  matters 
of  business,  and  was  often  spoken  of  as  his,  though  not  so  in  fact, 
but  that  being  unproductive,  the  oaths  were  made  by  Joseph  in  order 
to  get  rid  of  the  tax  assessed  against  him  and  make  Samuel  pay  it, 
as  if  this  circumstance  could  possibly  extenuate  what,  if  not  true,  was 
simple  perjury. 

This  bill  is  signed  by  the  widow  of  the  deceased,  and  the  suit  is 
prosecuted  by  her  and  the  executors  of  his  will ;  but  we  do  not  think 
that  the  evidence  in  the  case  justifies  the  reproach  they  would  cast 
upon  his  name  and  character.  There  are  casual  observations  made 
by  him,  sometimes  in  loose  conversation,  mostly  in  friendly  letters, 
which,  unexplained,  would  indicate  that  he  was  owner  instead  of 
mortgagee  of  the  stock,  expressions  not  at  all  unnatural  where  one 
holds  the  absolute  title  to  property;  but  there  is  nothing  in  them 
which  overcomes  the  weight  of  his  affirmation  under  oath,  supported 
as  that  is  by  all  the  attendant  circumstances. 

We  are  satisfied  that  the  certificate  of  the  two  hundred  and  fifty 
shares  was  issued  to  the  deceased  as  security  for  a  loan,  and  not  upon 
a  purchase.  It  is  competent  to  show  by  parol  what  the  transaction 
was.  In  the  late  case  of  Peugh  v.  Davis  (96  U.  S.  336),  we  stated 
the  doctrine  of  equity  on  this  subject,  where  an  instrument  was  in 
form  a  conveyance,  but  was  in  fact  intended  as  a  security ;  and  though 
the  instrument  there  was  a  deed  of  real  property,  the  principle  applies 
when  the  instrument  purports  to  transfer  personal  property.  A  court 
of  equity,  we  there  said,  "looks  beyond  the  terms  of  the  instrument 
to  the  real  transaction ;  and  when  that  is  shown  to  be  one  of  security, 
and  not  of  sale,  it  will  give  eflfect  to  the  actual  contract  of  the  parties. 
As  the  equity,  upon  which  the  court  acts  in  such  cases,  arises  from 
the  real  character  of  the  transaction,  any  evidence,  written  or  oral, 
tending  to  show  this  is  admissible.  The  rule  which  excludes  parol 
testimony  to  contradict  or  vary  a  written  instrument  has  reference  to 
the  language  used  by  the  parties.  That  cannot  be  qualified  or  varied 
from  its  natural  import,  but  must  speak  for  itself.  The  rule  does  not 
forbid  an  inquiry  into  the  object  of  the  parties  in  executing  and  re- 
ceiving the  instrument.  Thus,  it  may  be  shown  that  a  deed  was  made 
to  defraud  creditors,  or  to  give  a  preference,  or  to  secure  a  loan,  or 


The  Parol  Evidence;  Rule  821 

for  any  object  not  apparent  on  its  face.  The  object  of  parties  in  such 
cases  will  be  considered  by  a  court  of  equity;  it  constitutes  a  ground 
for  the  exercise  of  its  jurisdiction,  which  will  always  be  asserted  to 
prevent  fraud  or  oppression  and  to  promote  justice."  Hughes  v.  Ed- 
wards, 9  Wheat.  489;  Russell  v.  Southard,  12  How.  139;  Taylor  v. 
Luther,  2  Sumn.  228;  Pierce  v.  Robinson,  13  Cal.  116. 

As  in  our  opinion  the  appellant  is  the  owner  of  the  stock  in  question, 
and  his  brother  held  it  merely  as  collateral  security  for  the  $5,250 
loaned,  it  is  unnecessary  to  consider  what,  if  any,  effect  is  to  be  given 
to  the  decree  obtained  in  the  former  case  of  Samuel  Brick  against 
the  executors  of  the  deceased.  Assuming  that  the  District  Court 
never  acquired  jurisdiction  over  the  executors  resident  in  the  State- 
of  New  York,  the  situation  of  the  parties  remains  as  previously;  and 
upon  payment  of  the  loan  with  interest,  after  proper  credits  for  the 
dividends  received,  the  appellant  will  be  entitled  to  the  possession  of 
the  certificate.  The  present  suit  proceeds  upon  the  theory  that  the 
stock  belongs  to  the  estate  of  the  deceased,  and  is  not  held  as  secur- 
ity. It  seeks  to  enforce  a  claim  of  ownership  to  the  property,  and 
not  the  payment  of  the  loan  by  its  sale. 

The  decree  must,   therefore,  be  reversed,  with   directions   to  the 
court  below  to  dismiss  the  bill;  and  it  is 

So  ordered. 


MARCH  V.  McNAIR. 
99  N.  Y.  174.     (1883) 


Earl,  J.  In  1869  the  plaintiff  and  her  two  sons,  John  R,  and  Charles 
H.  Marsh,  resided  at  Avon  in  this  State.  At  the  same  time  Chauncey 
W.  Gibson  resided  at  Lima  in  the  same  county  where  he  carried  on 
the  business  of  a  private  banker  under  the  name  of  the  Exchange 
Bank,  and  he  was  a  local  agent  of  the  National  Life  Insurance  Com- 
pany. In  April  of  that  year  John  R.  and  Charles  H.,  through  Gibson 
as  agent  of  the  company,  procured  two  policies  of  insurance  on  their 
own  lives  for  $5,000  each.  The  policy  on  the  life  of  John  R.  was 
payable  to  Charles  H.  as  the  assured,  and  that  on  the  life  of  Charles 
H.  was  payable  to  Mary  Marsh,  the  plaintiff,  as  the  assured.  These 
policies  remained  in  the  possession  of  Gibson  down  to  the  23d  day 
of  May,  1872,  and  during  that  time  he  advanced  the  money  to  pay  the 


822  Cases  on  Evidence 

premiums  upon  them,  John  R.  and  Charles  H.  giving  him  their  checks 
upon  his  bank  for  the  amounts  thus  advanced;  and  during  that  time 
it  appears  that  he  held  the  policies  as  collateral  security  for  a  large 
indebtedness  due  from  them  to  him.  On  the  23d  day  of  May,  1872, 
the  plaintiflf  assigned  the  policy  on  the  life  of  Charles  H.,  in  which  she 
was  interested,  to  Gibson  by  an  assignment,  absolute  in  form,  for  the 
expressed  consideration  of  $1,  "and  for  other  valuable  considerations." 
On  the  same  day,  and  at  the  same  place,  she,  with  her  two  sons,  also 
executed  an  instrument,  of  which  the  following  is  a  copy :  "This  is  to 
certify  that  in  consideration  of  crediting  C.  H.  March  at  the  Exchange 
Bank  of  Lima  $353.72,  paying  mortgage  (on  property  formerly  deeded 
by  J.  R.  Marsh,  in  Avon,  to  C.  W.  Gibson)  given  by  William  F, 
Russell  to  C.  H.  Marsh,  $110.46,  and  indorsing  $35.82  upon  a  note 
made  by  C.  M.  Marsh  June  8,  1871,  for  $300,  we  jointly  and  severally 
sell,  assign  and  transfer  all  our  right,  title  and  interest  in  two  policies, 
Nos.  4277  and  4287,  upon  the  lives  of  Charles  H,  Marsh  and  John 
R.  Marsh,  issued  by  the  National  Life  Insurance  Company  of  the 
United  States  of  America  to  Chauncey  W.  Gibson,  of  Lima,  N.  Y. 
"Dated  Avon,  N.  Y.,  May  23,  1872. 

"J.  R.  Marsh, 

"C.  H.  Marsh, 

"Mary  Marsh." 
In  February,  1874,  Gibson,  having  become  insolvent,  made  a  general 
assignment  for  the  benefit  of  his  creditors  to  the  defendant  McNair, 
and  assigned  that  policy  to  him  as  a  part  of  his  assets.  McNair,  subse- 
quently, by  a  suit  against  the  insurance  company,  recovered  the  amount 
insured;  and  then  in  the  year  1876,  the  plaintiff  claiming  that  the 
assignment  to  Gibson  was  made  merely  as  collateral  security  for  an 
indebtedness  to  him  of  $500,  due  to  him  from  her  sons,  tendered  him 
that  amount  and  demanded  the  money  recovered  by  him  on  the  policy ; 
and  upon  his  refusal  to  pay  she  commenced  this  action.  In  her  com- 
plaint she  demanded,  besides  other  relief,  judgment  against  him  that 
the  instrument  above  set  forth  be  reformed,  so  as  to  conform  to  the 
agreement  and  intention  of  the  parties  thereto,  by  reciting  and  stating 
therein  that  the  same  was  made  and  executed  as  collateral  security 
for  the  payment  to  Gibson  of  the  sum  of  $500,  and  interest.  The 
defendant  in  his  answer  claimed  that  the  assignment  was  absolute  and 
not  given  as  collateral  security.  Upon  the  trial,  the  plaintiff  gave  parol 
evidence,  tending  to  show  that  the  instrument  was  executed  by  the 
plaintiff,  upon  an  assurance  that  it  was  only  intended  as  collateral 
security  for  $500,  and  that  she  signed  it  for  that  purpose.     At  the 


Tut  Parol  Evidence  Rule  823 

close  of  the  evidence  the  defendant  moved  to  dismiss  the  complaint 
upon  several  grounds,  one  of  which  was  that  the  plaintiff  was  con- 
cluded by  the  agreement  contained  in  the  assignment  executed  by  her, 
and  her  two  sons,  for  the  reason  that  the  contract  made  by  the  writing 
could  not  be  varied  or  contradicted  by  parol  evidence.  The  court 
denied  the  motion  and  defendant's  counsel  excepted,  whereupon  the 
court  made  findings,  among  which  is  the  following:  "That  the  said 
assignments  were  and  each  of  them  was  executed  and  delivered  by  the 
plaintiff,  upon  the  representations  and  agreements  of  the  said  Gibson 
and  of  his  agents  who  procured  the  same  to  be  executed,  that  the 
same  were  intended  to  be  held  and  used  as  collateral  security  to  an  in- 
debtedness of  the  said  J.  R.  Marsh  and  Charles  H.  Marsh  to  the  said 
Gibson  in  the  sum  of  $500,  and  for  no  other  purpose."  And  he  or- 
dered judgment  in  favor  of  the  plaintiff  for  the  sum  of  $6,710.12, 
which  was  the  balance  of  the  money  in  defendant's  hands  received 
upon  the  policy,  including  interest  after  deducting  the  $500,  and  the 
premium  paid  by  Gibson  April  7,  1873. 

There  was  no  allegation  in  the  complaint  that  the  plaintiff  was  in- 
duced to  execute  the  instrument  by  any  fraud,  or  that  it  was  executed 
by  the  parties  under  any  mutual  mistake  of  facts ;  and  there  was  no 
finding  by  the  trial  judge  that  any  fraud  was  perpetrated  upon  her, 
or  that  the  parties  labored  under  any  mistake  in  executing  the  instru- 
ment. The  finding  was  simply  that  the  instrument  was  intended  to  be 
held  and  used  as  collateral  security.  It  was  not  reformed  or  annulled 
by  the  judgment,  and  the  plaintiff  was  permitted  to  recover  by  simply 
proving  by  parol  that  the  instrument  absolute  in  form  was  intended 
as  collateral  security;  and  the  sole  question  for  our  determination  is, 
whether  the  parol  evidence  was  competent,  and  sufficient  to  show  that 
the  instrument  was  to  have  force  and  effect  only  as  collateral  security 
and  not  as  an  absolute  transfer  of  the  policy. 

We  are  of  opinion  that  the  parol  evidence  was  incompetent,  and 
that  upon  the  case  as  it  appears  in  the  record,  the  plaintiff  was  not 
entitled  to  recover.  It  is  well  settled  in  the  law  of  this  state,  that  an 
instrument  assigning  or  conveying  real  or  personal  property  in  abso- 
lute terms  may  by  parol  evidence  be  shown  to  have  been  intended  as 
security  only.  While  this  rule  is  an  exception  to  the  general  rule  of 
evidence,  forbidding  the  contradiction  or  explanation  of  written  instru- 
ments by  parol  evidence,  it  has  long  been  established  in  the  law  of  this 
state.  It  grew  up  in  the  equity  courts  from  the  efforts  of  equity 
judges  to  prevent  forfeitures,  to  relieve  against  frauds,  and  to  en- 
force the  equitable  maxim,  "once  a  mortgage  always  a  mortgage." 


824  Cases  on  Evidence 

It  was  supposed  that  the  evidence  did  not  contradict  the  instrument, 
but  simply  showed  the  purpose  for  which  it  was  given,  and  that  the 
instrument,  although  purposely  made  absolute,  was  so  made,  however, 
simply  for  the  purpose  of  giving  security  to  the  party  to  whom  it 
was  given,  which  was  not  really  inconsistent  with  its  form.  Hence, 
it  was  conceived  that  parol  evidence  showing  the  purpose  was  not  an 
invasion  of  the  general  rule  forbidding  such  evidence  to  vary,  explain 
or  contradict  a  written  instrument.  The  rule  having  been  established 
in  chancery,  was  finally,  after  the  Code,  and  the  union  of  law  and 
equity  jurisdiction  in  the  same  court,  made  applicable  to  cases  both 
in  law  and  in  equity.  So,  if  this  were  simply  an  absolute  assignment 
of  the  policy  to  Gibson,  there  could  be  no  question  under  the  law  of 
this  state,  that  the  plaintiff  could  be  permitted  to  show  by  parol  that  it 
was  intended  as  collateral  security.  But  here  there  was  more  than  a 
simple  assignment.  Both  instruments,  executed  at  the  same  time,  and 
relating  to  the  same  transaction,  must  be  considered  together,  and 
hence  the  effect  of  both  is  really  to  be  found  in  the  instrument  above 
set  out. 

By  its  terms  the  precise  consideration  upon  which  the  policy  was 
assigned  is  specified,  and  that  is  stated  to  be  that  Gibson  was  to 
credit  Charles  H.  Marsh  with  the  sum  of  $353.72  at  his  bank,  which 
sum  was  in  fact  an  overdraft  by  Charles  at  the  bank ;  and  that  credit 
was  made.  Gibson  was  also  to  pay  a  certain  mortgage  upon  real  estate 
which  John  R.  Marsh  had  conveyed  to  him,  and,  as  otherwise  appears, 
which  he  had  conveyed  with  covenants  that  the  premises  were  free 
and  clear  of  incumbrances ;  and  he  was  to  indorse  $35.82  upon  a  note 
for  $300,  which  he  held  against  Charles  H.,  and  that  indorsement 
he  made;  and  these  sums  together  amounted  to  the  precise  sum  of 
$500.  This  instrument  is  more  than  an  assignment.  It  contains  what 
both  parties  agreed  to  do.  It  shows  that  the  assignment  was  made  for 
the  purposes  mentioned,  and  precisely  what  Gibson  was  to  do  in  con- 
sideration thereof.  He  became  bound  to  do  precisely  what  was  speci- 
fied for  him  to  do,  and  he  could  have  been  sued  by  the  assignors  for 
damages  if  he  had  failed  to  perform.  Hence  the  instrument  is  not 
a  mere  assignment  or  transfer  of  the  policy.  It  is  a  contract  in  writ- 
ing within  the  rule  which  prohibits  parol  evidence  to  explain,  vary  or 
contradict  such  contracts. 

It  is  believed  that  no  case  can  be  found  where  parol  evidence  has 
been  received  for  the  purpose  of  showing  that  such  an  instrument 
was  given  merely  as  collateral  security  and  not  for  the  precise  pur- 
pose mentioned  in  it.     Without  commenting  upon  the  authorities  the 


The  Parol  Evidence  Rui.e  825 

following  are  ample  to  show  that  the  evidence  was  not  competent. 
( I  Greenl.  on  ev.,  275 ;  McCrea  v.  Purmort,  16  Wend.  461 ;  Keilogg 
V.  Richards,  14  id.  117;  Goodyear  v.  Ogden,  4  Hill,  104;  Graves  v. 
Friend,  5  Sandf.  568;  Coon  v.  Knap,  8  N.  Y.  402;  Cocks  v.  Barker, 
49  id.  107;  Hinckley  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  56  id.  429;  Van 
Bokkelen  v.  Taylor,  62  id.  105;  Shaw  v.  The  Republic  L.  Ins.  Co., 
69  id.  286 ;  Cram  v.  Union  Bank,  i  Abb.  Ct.  App.  Dec.  461 ;  Wilson 
V.  Deen,  74  N.  Y.  531 ;  Eighmie  v.  Taylor,  98  id.  288.) 

H  the  plaintiff  could  show  that  this  agreement  by  the  mutual  mis- 
take of  the  parties  did  not  express  their  real  intention,  she  could  have 
it  reformed;  or  if  she  could  show  that  she  was  induced  to  execute 
it  by  the  fraud  of  Gibson,  she  might  have  it  annulled.  But  in  the 
abseace  of  an  allegation  and  of  proof  and  finding  that  there  was 
either  fraud  or  mutual  mistake,  the  instrument  must  have  force  and 
effect  according  to  its  terms,  and  cannot  be  varied,  explained  or  con- 
tradicted by  parol  evidence. 

It  follows  from  these  views  that  the  judgment  of  the  General  Term 
should  be  reversed  and  a  new  trial  ordered,  costs  to  abide  the  event. 

All  concur,  except  Ruger,  Ch.  J.,  dissenting. 

Judgment  reversed. 

Notes.  The  parol  evidence  rule  Is  exceedingly  vague,  and  the  decisions 
pertaining  thereto  are,  in  some  respects,  quite  conflicting. 

The  term  "parol"  is  of  French  origin,  and  has  various  meanings.  Its 
literal  meaning  is  word  or  speech.  In  this  sense  it  is  synonymous  with 
the  term  oral  which  is  restricted  to  spoken  words.  The  terms  oral  and 
verbal,  although  frequently  used  interchangeably,  are  not  synonymous.  The 
latter  term  is  equally  applicable  to  both  spoken  and  written  words.  Strictly 
speaking,  therefore.  It  would  be  more  appropriate  to  use  the  term  "verbal 
evidence  rule."  The  term  parol,  as  used  in  the  rule,  is  misleading.  As 
said  by  Dean  Wigmore,  "It  must  be  understood  to  be  employed  in  a  purely 
unnatural  and  conventional  sense"  (Wigmore  on  Evid.,  vol.  IV,  §  3369). 

Professor  Thayer,  in  speaking  of  the  parol  evidence  rule,  says.  "Few 
things  in  our  law  are  darker  than  this,  or  fuller  of  subtle  diflBculties"  (6 
Harvard  Law  Review  325).  Much  of  the  confusion  and  conflict  in  the 
decisions,  as  regards  the  application  of  the  rule,  is  the  fact  that  courts 
frequently  apply  it  to  matters  where  no  law  of  evidence  is  involved.  In 
Its  application,  the  rule  is  restricted  to  written  instruments;  but  it  does  not 
follow  from  this  that  the  rule  is  applicable  to  any  writing  involved  in  a 
case,  under  all  circumstances.  In  many  cases  the  admissibility  of  testi- 
mony concerning  writings  is  governed  by  rules  of  the  substantive  law,  in 
which  cases  the  parol  evidence  rule  has  no  application. 

The  chief  reason  assigned  for  the  existence  of  the  rule  are  uncertainty 
of  "slippery  memory"  and  danger  of  falsehood. 

The  rule  had  Its  origin  in  the  common  law.  In  some  states,  however, 
there  are  statutes  declaratory  of  the  common  law. 


PART  VI. 

WEIGHT  AND  SUFFICIENOY. 

.THOMPSON  LUMBER  CO.  v.  INTERSTATE  COMMERCE 
COMMISSION. 

igS  ^^^'  ^^P-  ^^^'     (^9^^) 

Petition  by  the  Thompson  Lumber  Company  and  others  against  the 
Interstate  Commerce  Commission,  in  which  the  United  States  and  the 
Illinois  Central  Railroad  Company  intervened.  Demurrer  to  petition 
overruled,  with  leave  to  answer. 

Archbaud,  Judge.  This  case  does  not  differ  in  principle  from  that 
of  Russe  &  Burgess,  193  Fed.  678,  just  decided.  Indeed,  the  two  are 
linked  together  by  the  Commission,  the  decision  in  the  one  on  the  sub- 
ject of  laches  being  given  as  a  reason  for  the  decision  in  the  other. 

The  rate  complained  of  before  the  Commission  was  that  on  hard- 
wood lumber  from  Memphis  to  New  Orleans  for  export.  The  rate 
charged  was  12  cents  a  hundred  pounds,  and  complaint  was  made 
against  the  Illinois  Central  Railroad,  the  Yazoo  &  Mississippi  Valley. 
Railroad,  and  the  St.  Louis,  Iron  Mountain  &  Southern  Railroad ;  these 
being  the  three  lines  by  which  shipments  of  such  lumber  are  made  be- 
tween the  points  mentioned  at  the  rate  in  question.  The  Commission 
dismissed  the  complaint  as  to  the  St.  Louis,  Iron  Mountain  &  Southern, 
but  held  that  as  to  the  Illinois  Central  and  the  Yazoo  &  Mississippi 
Valley  the  12-cent  rate  was  unreasonable;  10  cents  per  hundred  pounds 
being  fixed  as  the  maximum.  The  Yazoo  &  Mississippi  Valley  was  not 
served  in  the  present  case  and  has  not  appeared,  and  the  case  therefore 
proceeds  only  against  the  Illinois  Central. 

As  to  the  reparation  claimed  on  the  lo-cent  basis,  the  Commission 
said: 

"We  cannot  award  damages  in  this  case  based  upon  the  use  of  the 
12-cent  rate  up  to  the  date  of  the  filing  of  the  complaint  because  of 
the  laches  of  the  complainants  and  because  the  record  does  not  con- 
clusively disclose  that  the  rate  was  unreasonable  prior  to  said  date. 
The  questions  of  law  as  to  the  reparation  and  the  amount  thereof 

826 


W:eiGHT  AND  Sufficiency  827 

under  the  above  ruling  will  be  reserved  for  consideration  at  a  later 
date." 

Not  satisfied  with  the  situation  in  which  the  case  was  so  left,  the 
petitioners  applied  for  a  rehearing  and  modification  of  the  order, 
assigning  among  other  things  that  the  Commission  erred  in  the  ruling 
made;  it  being  urged  in  that  connection  in  the  brief  filed  that  there 
was  no  place  for  the  application  of  the  doctrine  of  laches,  nor  for  any 
limitation  other  than  that  imposed  by  the  statute,  and  that  in  holding 
the  petitioners  to  conclusively  prove  the  unreasonableness  of  the  rate 
prior  to  the  filing  of  the  complaint  the  Commission  was  enforcing  a 
degree  of  proof  not  justified  upon  any  principle.  But  notwithstanding 
this,  and  with  its  attention  thus  called  to  the  matter,  the  Commission 
in  a  further  report  declined  to  modify  the  order.  The  present  bill  was 
then  filed,  the  same  as  in  the  Russe  &  Burgess  Case,  in  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  Illinois,  and 
after  same  intermediate  proceedings  comes  up  now  on  demurrer  by  the 
Interstate  Commerce  Commission  joined  in  by  the  United  States  and 
the  Illinois  Central  Railroad  intervening. 

( 1 )  Nothing  need  be  added  to  what  is  said  in  the  Russe  &  Burgess 
Case  on  the  subject  of  laches.  So  far  as  the  action  of  the  Commission 
in  refusing  complete  reparation  is  based  on  the  application  of  that 
doctrine  to  shipments  which  preceded  the  filing  of  the  complaint,  it  is 
clearly  invalid. 

(2)  The  other  ground  assigned  by  the  Commission  for  its  action, 
in  our  judgment,  is  equally  untenable.  To  require  conclusive  proof  of 
the  unreasonableness  in  the  past  of  the  rate  complained  of  was  to  set 
up  a  standard  which  is  exacted,  if  ever,  in  only  the  most  extreme  cases. 

"Where  an  adverse  presumption  is  to  be  overcome,  or,  on  grounds 
of  public  policy  and  in  view  of  peculiar  facilities  for  perpetrating  in- 
justice by  fraud  and  perjury,  a  degree  of  proof  is  sometimes  required 
which  is  variously  designated  as  'clear',  and  'conclusive',  'clear,  precise, 
and  indubitable',  'convincing',  'unequivocal',  etc."     17  Cycl.  771. 

Conclusive  evidence  is  that  which  is  incontrovertible;  that  is  to  say, 
either  not  open  or  not  able  to  be  questioned.  Wood  v.  Chapin,  13  N. 
Y.  509,  515,  67  Am.  Dec.  62.  Where  it  is  said  that  a  thing  is  conclu- 
sively proved,  it  means  that  that  result  follows  from  the  facts  shown 
as  the  only  one  possible.  People  v.  Stephenson,  11  Misc.  Rep.  141, 
32  N.  Y.  Supp.  1 1 12,  1 1 14.  Conclusive  proof  means  either  a  presump- 
tion of  law,  or  evidence  so  strong  as  to  oyerbear  everything  to  the 
contrary.    Haupt  v.  Pohlmann,  24  N.  Y.  Super.  Ct.  121,  127. 

(3)  In  a  civil  action  the  complainant  is  never  bound  to  do  more 


828  Cases  on  Evidence 

than  sustain  his  case  by  a  preponderance  of  the  credible  evidence. 
Louisville  &  Nash.  R.  R.  v.  Jones,  83  Ala.  376,  3  South.  902 ;  Ford  v. 
Chambers,  19  Cal.  143;  Treadwell  v.  Whittier,  80  Cal.  574,  22  Pac. 
266,  5  L.  R.  A.  498,  13  Am.  St.  Rep.  175;  Williams  v.  Watson,  34 
Mo.  95;  Stearns  v.  Field,  90  N.  Y.  640;  Crabtree  v.  Read,  50  111.  206; 
McDeed  v.  McDeed,  67  111.  545;  Graves  v.  Colwell,  90  111.  612.  To 
instruct  a  jury  that  they  must  be  conclusively  convinced  is  a  manifest 
error.    Hiester  v.  Laird,  i  W.  &  S.  (Pa.)  245. 

(4)  In  the  case  in  hand  it  v^^as  only  necessary  for  the  petitioners 
to  show  by  a  preponderance  of  proof  that  the  rate  in  the  past — as  it 
was  found  by  the  Commission  that  it  would  be  for  the  future — was 
not  a  just  or  reasonable  rate;  and,  if  they  did  this,  it  was  all  that 
could  be  required  of  them.  No  doubt  the  Commission  had  the  right  to 
call  for  proof  that  was  reasonably  convincing.  But  it  had  no  right 
to  array  itself  against  that  which  was  produced,  to  the  extent  of  hold- 
ing that  it  was  not  conclusive ;  which  was  in  eflFect  saying  that  nothing 
short  of  what  was  incontrovertible  would  satisfy  it. 

Nor  can  this  be  passed  over  as  an  inadvertence  or  as  meaning  no 
more  than  that  the  evidence  so  far  as  concerned  the  past  was  not 
satisfactory.  If  this  was  all  there  was  to  the  case,  of  course  nothing 
could  be  made  of  it.  But  by  the  petition  for  a  rehearing  and  the  argu- 
ment that  was  made  in  that  connection  the  attention  of  the  Commis- 
sion was  directly  called  to  the  effect  of  the  ruling,  and  after  due  consid- 
eration it  was  adhered  to.  If  therefore  the  matter  was  left  in  any  doubt 
by  the  original  report,  there  can  be  none  by  the  later  one.  By  the 
express  reiteration  of  the  former  ruling  it  was  thereby  declared,  not 
that  the  evidence  was  not  satisfactory  or  unconvincing,  but  that  it  was 
not  conclusive,  and  that  none  other  would  be  sufficient.  This  was 
asking  more  of  the  petitioners  than  was  warranted,  and  the  action  of 
the  Commission  in  refusing  reparation  as  to  the  past  upon  that  ground 
is  invalid. 

The  demurrer  is  overruled  with  leave  to  respondents  to  answer  over. 


Weight  and  Suifii'iciE;NCY  829 

NEAL  V.  RAILWAY  CO. 
I2Q  lozva  5.     (1905) 

Action  to  recover  damages  for  the  death  of  plaintiff's  intestate  al- 
leged to  have  resulted  from  injuries  received  by  him  while  in  defend- 
ant's employ  as  switch  tender,  and  to  have  been  due  to  defendant's 
negligence.  Verdict  and  judgment  for  plaintiff.  Defendant  appeals. 
Reversed. 

McClain,  J.  The  appellant's  contention  is  that  the  trial  court  erred 
in  overruling  a  motion  to  direct  a  verdict  in  its  favor  and  in  submitting 
to  the  jury  the  question  whether  the  deceased  was  injured  by  reason 
of  defendant's  negligence,  assuming  that  there  was  evidence  tending  to 
show  negligence  on  the  part  of  defendant  in  having  defective  blocking 
between  the  rails  at  the  switch  where  deceased  was  injured;  and  the 
sole  question  argued  is  as  to  whether  there  is  sufficient  evidence  to  sup- 
port a  verdict  for  the  plaintiflF. 

The  evidence  relied  upon  for  the  plaintiff  as  tending  to  show  that 
the  accident  was  the  result  of  defendant's  negligence  was  to  the  effect 
that  the  wooden  blocking  between  the  movable  rail  and  the  stationary 
rail  at  the  north  side  of  this  switch  was  loose,  so  that  it  would  press 
down  with  the  weight  of  a  person  stepping  upon  it  and  allow  the  foot 
of  such  person  to  be  caught  between  the  two  rails  which  were  separated 
about  five  inches  when  the  switch  was  open,  as  at  the  time  of  the  acci- 
dent. This  piece  of  wooden  blocking  was  three  or  four  feet  long,  the 
eastern  end  about  eight  or  ten  feet  from  the  point  of  the  switch.  The 
theory  of  counsel  for  plaintiff  is  that  the  deceased  caught  his  right  foot 
between  the  rails  as  a  result  of  stepping  on  the  eastern  end  of  this 
blocking  and  was  thus  held  until  the  car  ran  over  or  against  him ;  and, 
as  supporting  this  theory,  they  rely  upon  evidence  that  the  right  shoe 
and  overshoe  of  deceased  were  torn  open  at  the  heel  from  the  vamp 
upward  and  his  shoestring  was  broken,  and,  also,  that  a  piece  of  the 
trousers  of  deceased  and  a  portion  of  his  right  kneecap  were  found 
next  morning  forced  in  betwen  the  ball  of  the  north  rail  and  the  wooden 
blocking  which  was  bolted  on  the  inside  thereof,  between  the  ball  and  the 
base  at  the  west  end  of  the  blocking,  which  has  just  been  described  as 
filling  the  space  between  the  two  rails.  This  is  the  only  evidence  in 
the  record  which  can  be  claimed  in  any  way  to  directly  support  the 
theory  that  the  accident  was  due  to  the  defective  blocking. 

The  burden  was  on  the  plaintiff  to  establish,  not  only  that  the  de- 
fendant was  negligent  in  having  a  defective  blocking  between  the  rails 


830  Cases  on  Evidence 

at  this  switch,  but  also  that  the  injury  to  deceased  resulted  from  this 
defect.  It  is  conceded  that  the  connection  between  the  defect  and  the 
injury  was  established,  if  at  all,  only  by  circumstantial  evidence.  "A 
theory  cannot  be  said  to  be  established  by  circumstantial  evidence,  even 
in  a  civil  action,  unless  the  facts  relied  upon  are  of  such  nature  and 
so  related  to  each  other  that  it  is  the  only  conclusion  that  can  fairly 
or  reasonably  be  drawn  from  them.  It  is  not  sufficient  that  they  be 
consistent  merely  with  that  theory,  for  that  may  be  true  and  yet  they 
may  have  no  tendency  to  prove  the  theory.  This  is  the  well-settled 
rule."  Asbach  v.  Chicago,-  B.  &  Q.  R.  Co.,  74  Iowa,  251.  If  other 
conclusions  may  reasonably  be  drawn  as  to  the  cause  of  the  injury 
from  the  facts  in  evidence  than  that  contended  for,  the  evidence  does 
not  support  the  conclusion  sought  to  be  drawn  from  it.  Verdicts  must 
have  evidence  to  support  them,  and  the  jury  will  not  be  permitted 
merely  to  conjecture  how  the  accident  occurred.  In  matters  of  proof 
they  are  not  justified  in  inferring  from  mere  possibility  the  existence 
of  facts.  Wheelan  v.  Chicago,  M.  &  St.  P.  R.  Co.,  85  Iowa,  167.  If 
it  appears  that  the  facts  and  circumstances  from  which  a  conclusion 
is  sought  to  be  deduced,  although  consistent  with  that  theory,  they  do 
not  support  the  theory  contended  for.  Rhines  v.  Chicago  &  N.  W. 
R.  Co.,  75  Iowa,  597. 

We  reach  the  conclusion  that  the  evidence  does  not  tend  to  support 
the  claim  that  the  accident  resulted  from  deceased's  foot  being  caught 
by  reason  of  the  defective  blocking,  and  on  no  other  theory  could  the 
verdict  of  the  jury  under  the  instructions  have  been  for  the  plaintiff. 
The  jury  are  not  permitted  to  find  material  facts  without  evidence,  or 
on  mere  conjectures  as  to  the  truth  of  one  of  two  or  more  equally 
probable  or  possible  theories  having  different  legal  results.  Reynolds 
V.  Burgess  Sulphite  Fiber  Co.,  (N.  H.)  59  Atl.  Rep.  615. 

The  judgment  of  the  trial  court  is  therefore  reversed. 


WARD  v.  NEW  YORK  LIFE  INSURANCE  CO. 

225  N.  Y.  314.     (1919) 

Appeal  from  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  third  judicial  department,  entered  November  17,  1916. 
affirming  a  judgment  in  favor  of  defendants  entered  upon  a  dismissal 
of  the  complaint  by  the  court  on  trial  at  Special  Term. 


Weight  and  Sufficiency  831 

HiscocK,  Ch.  J.  The  New  York  Life  Insurance  Company  issued 
a  policy  on  the  life  of  one  Ward  in  the  sum  of  $5,000,  payable  on  death 
of  the  insured  to  his  executors,  administrators  or  assigns.  The  policy 
also  contain^ed  a  provision  that  the  insured  might  at  any  time  change 
the  beneficiary  under  said  policy  by  written  notice  and  indorsement  of 
the  change  on  the  policy  by  thecompany.  When  Ward  died  opposing 
claimants  to  the  proceeds  of  the  policy  appeared.  One  side  were  his 
sons  who  a  short  time  before  his  death  had  been  duly  designated  and 
by  the  company  recognized  as  beneficiaries  under  the  policy.  On  the 
other  side  appeared  the  wife  who  claimed  the  proceeds  of  the  policy 
under  an  equitable  parol  assignment  for  value  antedating  the  designa- 
tion of  the  beneficiaries.  The  company  paid  the  proceeds  into  court 
to  be  contested  for  by  the  opposing  claimants  and  judgment  has  thus 
far  proceeded  in  favor  of  the  beneciaries  as  against  the  alleged  assignee. 

While  there  is  no  claim  that  the  designation  of  the  defendant  bene- 
ficiaries was  for  a  valuable  consideration,  there  is  on  the  other  hand 
no  question  that  their  designation  was  made  in  proper  form.  The 
claim  of  the  appellant  to  an  assignment  of  the  policy  rests  entirely  on 
parol  testimony.  Two  witnesses  gave  evidence  to  the  effect  that  the 
insured  had  in  substance  stated  that  he  had  made  an  assignment  of  his 
insurance  to  his  wife.  The  main  testimony,  however,  to  sustain  the 
alleged  assignment  was  given  by  the  wife  herself  who  first  testified 
that  on  one  occasion  some  time  before  her  husband's  death,  when  he 
desired  to  borrow  some  money  from  her  he  stated  in  substance  that 
he  would  execute  as  security  for  new  loans  assignments  of  life  insur- 
ance policies,  which  it  may  be  inferred  included  the  present  one,  and 
that  thereupon  she  loaned  him  some  money.  In  subsequent  testimony, 
however,  she  varied  her  account  of  this  interview  and  testified  to  state- 
ments then  made  by  her  husband- which  were  in  conformity  with  those 
said  to  have  been  made  by  him  at  various  subsequent  times  and  which 
were  to  the  effect  that  he  had  assigned  his  life  insurance  policies  to 
her,  that  she  did  not  need  be  afraid  to  loan  him  money  because  she 
would  be  repaid  or  was  secured  by  assignments  of  his  insurance,  etc. 
These  statements,  which  are  the  ones  relied  upon  on  this  appeal,  were, 
therefore,  to  the  effect  that  the  insured  had  assigned  to  the  appellant 
this  life  insurance  or  his  life  insurance  pohcies,  and  she  says  that  on 
the  strength  of  these  statements  she  from  time  to  time  loaned  him 
various  sums  of  money  reaching  in  the  aggregate  a  considerable  amount. 
There  is  no  other  intelligible  evidence  tending  to  support  the  theory 
of  an  assignment. 

As  has  been  pointed  out,  the  only  evidence  of  assignment  cited  or 


832  Cases  on  Evidence 

relied  upon  on  this  appeal  consists  of  statements  made  by  the  insured 
that  he  had  assigned  his  insurance  to  the  appellant  and  we  do  not 
think  that  this  may  be  sufficient  to  establish  an  assignment.  It  very 
likely  may  be  that  under  some  circumstances  a  borrower  might  make 
statements  respecting  a  transfer  of  securities  to  a  proposed  lender 
upon  which  the  latter  would  be  entitled  to  rely  in  making  loans.  But 
that  does  not  seem  to  be  this  case.  The  appellant  could  not  have  been 
misled  by  the  statements  of  her  husband  and  there  is  no  element  of 
estoppel  involved  by  virtue  of  which  equity  will  treat  as  having  been 
done  that  which  ought  to  be  done.  The  appellant  knew  whether  an 
assignment  had  been  made.  She  was  not  deceived  by  her  husband's 
statements.  She  knew  that  he  had  never  executed  and  delivered  to 
her  any  written  assignment  of  the  insurance  policy;  that  he  had  never 
in  appropriate  and  effective  language  made  a  present  transfer  of, the 
policy  by  parol  to  her ;  that  she  had  never  had  possession  of  the  policy, 
and  that  he  had  never  done  anything  to,  by  or  with  her,  symbolically 
or  otherwise,  to  give  her  control  of  the  poHcy.  She  had  never  given 
to  or  received  from  the  insurance  company  any  notice  indicating  trans- 
fer of  ownership  to  her  and  she  had  no  assurances  that  the  insured 
was  not  exercising  control  and  ownership  over  the  policy  as  in  fact 
he  did  do.  Under  these  circumstances  it  seems  to  us  that  the  loose, 
general  statements  by  the  insured  that  he  had  made  a  transfer  of  the 
policy  were  not  sufficient  evidence  to  establish  even  an  equitable  parol 
assignment  to  the  appellant. 

We  are  not  adopting  this  view  on  the  theory  that  because  this  assign- 
ment is  claimed  to  have  been  made  by  a  dead  person  it  can  only  be 
established  by  a  different  kind  and  quality  of  evidence  than  would  be 
sufficient  if  the  transaction  were  alleged  to  have  been  with  a  living 
person,  and  for  which  theory  support  is  sometimes  supposed  to  be 
found  in  what  was  said  in  Rousseau  v.  Rouss,  (180  N.  Y.  116)  ;  Ham- 
lin V.  Stevens,  (177  N.  Y.  39) ;  Wallace  v.  Wallace,  (216  N.  Y.  28) 
and  other  similar  cases.  The  rule  in  any  civil  case  is  that  the  plaintiff 
must  establish  his  claim  by  a  fair  preponderance  of  evidence.  He  need 
do  no  more  than  this  if  his  claim  deals  with  a  dead  person;  he  cannot 
do  less  if  he  is  attacking  the  rights  and  property  of  a  living  person. 
The  general  rule  as  to  weight  and  quality  of  evidence  is  no  different 
in  one  case  than  in  the  other.  In  applying  the  rule  and  test  to  specific 
evidence,  however,  it  very  likely  will  and  should  occur  that  the  triers 
of  fact  will  more  carefully  and  critically  scrutinize  evidence  offered 
against  a  dead  person's  estate  for  the  purpose  of  deciding  whether  it 
does  make  the  necessary  weight  and  preponderance  of  evidence,  than 


,  Weight  and  Sufficiency  833 

would  be  done  if  the  testimony  was  offered  against  one  who  was  alive 
to  contradict  it.  This  is  what  we  construe  the  expressions  in  the  opin- 
ions to  which  we  have  referred  to  mean.  As  was  said  by  Judge  Crane 
in  IMcKeon  v.  Van  Slyck  (223  N.  Y.  392,  397),  writing  upon  this 
subject:  "In  civil  cases  a  plaintiff  is  never  required  to  prove  his  case 
by  more  than  a  preponderance  of  evidence.  This  is  as  true  of  actions 
against  an  executor,  founded  on  claims  put  forward  for  the  first  time 
after  the  death  of  the  testator,  as  it  is  of  other  actions.  No  doubt  in 
determining  whether  the  preponderance  exists,  the  triers  of  the  facts 
must  not  forget  that  death  had  then  sealed  the  lips  of  the  alleged  prom- 
isor. They  may  reject  evidence  in  such  circumstances  which  might 
satisfy  them  if  the  promisor  were  living.  They  must  cast  in  the  bal- 
ance the  evidence  offered  upon  the  one  side  and  the  opportunities  for 
disproof  upon  the  other.  They  may,  therefore,  be  properly  instructed 
that  to  make  out  a  preponderance  the  evidence  should  be  clear  and  con- 
vincing. But  all  these  instructions  in  the  last  analysis  are  mere  coun- 
sels of  caution." 

Our  conclusion  is  that  measuring  appellant's  case  by  the  ordinary 
and  standard  rules  she  failed  as  matter  of  law  to  produce  evidence 
which  would  have  permitted  the  court  to  find  that  an  assignment  had 
been  made.  (Wallace  v.  Ingersoll,  89  N.  Y.  508,  521 ;  Rupp  v,  Blan- 
chard,  34  Barb.  627,  629;  Holmes  v.  Evans,  129  N.  Y.  140,  145 ;  N.  W. 
Mut.  Life  Ins.  Co.  v.  Wright,  153  Wis.  252;  Richardson  v.  White,  167 
Mass.  58;  Bowers  v.  Johnson,  49  N.  Y.  432,  434;  Cuyler  v.  Wallace, 
183  N.  Y.  291 ;  Donovan  v.  Middlebrook,  95  App.  Div.  365. 

For  these  reasons  we  think  the  judgment  should  be  affirmed,  with 
costs. 

Collin,  Cuddeback,  Pound  and  Andrews,  JJ.,  concur;  Chase,  J., 
concurs  in  result ;  Cardozo,  J.,  not  voting. 

Judgment  affirmed. 


ROBERGE  V.  BONNER. 
183  N.  Y.  265.     (1906) 


Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  May  26,  1904,  affirming 
a  judgment  in  favor  of  defendants  entered  upon  a  verdict  and  an  order 
denying  a  motion  for  a  new  trial. 


834  Cases  on  Evidence 

Per  Curiam.  This  action  is  founded  upon  an  alleged  verbal  agree- 
ment under  which  the  plaintiff  claims  that  the  defendants'  testator 
promised  to  pay  him  the  sum  of  $100,000  during  the  lifetime  of  the 
testator,  or  to  leave  him  that  sum  in  his  will,  as  compensation  for 
services  alleged  to  have  been  rendered  in  the  capacity  of  a  veterinary 
surgeon.  The  jury  rendered  a  verdict  in  favor  of  the  defendants,  and 
upon  appeal  the  judgment  entered  upon  that  verdict  was  affirmed  by 
the  Appellate  Division. 

Since  it  is  practically  conceded  that  there  was  sufficient  evidence 
upon  the  general  issue  to  justify  the  verdict  rendered,  the  only  ques- 
tions open  for  consideration  on  this  appeal  arise  upon  two  exceptions. 
The  first  relates  to  the  exclusion  of  certain  evidence,  and  the  second 
to  a  portion  of  the  trial  court's  charge  made  in  response  to  a  request 
of  defendants'  counsel. 

(i)  As  to  the  first  exception  which  arises  upon  the  exclusion  of 
certain  entries  made  by  the  testator  in  a  diary  which  he  kept,  and  which 
the  plaintiff  relies  upon  to  corroborate  his  evidence  as  to  the  contract 
alleged  to  have  been  made,  it  is  sufficient  to  say  that  an  examination 
of  these  entries  discloses  clearly  that  they  in  no  way  tended  to  prove 
the  alleged  agreement,  and  the  ruling,  therefore,  did  no  harm. 

(2)  At  the  conclusion  of  the  charge  in  chief  the  counsel  for  the 
defendants  made  the  following  request:  "Your  Honor  also  used  the 
expression  that  the  plaintiff  must  satisfy  the  jury  by  a  fair  preponder- 
ance of  evidence  of  the  justice  of  his  claim.  My  contention  is  that  he 
must  satisfy  them  by  clear,  conclusive  and  convincing  evidence  of  this 
character."  To  this  the  learned  trial  judge  replied:  "I  do  not  object 
to  charging  that.  If  not  so  understood  I  will  tell  the  jury  that  was  my 
intention.  The  proof  must  be  clear,  convincing  and  conclusive  in 
your  minds.  I  will  so  charge."  It  is  doubtless  true  that  in  complying 
with  this  request  the  court  committed  a  technical  error,  since  this  por- 
tion of  the  charge  went  beyond  the  rule  as  to  the  degree  of  evidence 
required  to  justify  or  support  a  verdict  in  a  civil  case,  the  rule  being 
in  such  a  case  that  the  jury  must  be  satisfied  by  a  fair  preponderance 
of  the  evidence.  It  was  in  the  light  of  this  rule,  and  to  emphasize  its 
extent  as  well  as  its  limitations,  that  Judge  Vann,  in  writing  for  this 
court  in  a  recent  case  involving  an  unusual  contract  and  open  to  sus- 
picion, said :  "We  have  repeatedly  held  that  such  a  contract  must  not 
only  be  definite  and  founded  on  an  adequate  consideration,  but  also 
that  it  must  be  established  by  the  clearest  and  most  convincing  evi- 
dence." (Rosseau  v.  Rouss,  180  N.  Y.  116,  121.)  The  language 
quoted  clearly  defines  the  rule  applicable  to  such  a  case  as  this.    Proof 


Weight  and  Sufficiency  835 

may  be  required  to  be  clear  and  convincing  without  transcending  the 
rule  of  preponderance.  But  the  word  "conclusive"  has  a  larger  mean- 
ing, and,  when  used  in  connection  with  the  evidence  required  to  prove 
a  given  fact,  calls  for  a  much  higher  degree  of  proof  than  has  ever 
been  held  to  be  necessary  in  a  civil  action. 

We  are  not  satisfied,  however,  that  this  error  was  of  such  a  sub- 
stantial character  as  to  require  a  reversal  of  the  judgment  herein. 
When  the  passage  of  the  charge  referred  to  is  considered  in  connec- 
tion with  that  part  of  the  charge  in  which  the  learned  trial  judge  had 
fairly  and  correctly  laid  down  the  rule  in  such  cases,  it  is  quite  evident 
that  the  jiiry  could  not  have  been  misled.  Referring  to  this  rule  of 
evidence  the  trial  court  instructed  the  jury  as  follows:  "The  law  in 
this  case,  and  indeed  in  every  case,  is  that  a  party  coming  into  a  court 
of  justice  must  satisfy  the  jury  by  what  is  called  a  fair  preponderance 
of  evidence  as  to  the  justice  of  his  claim.  What  we  mean  by  the  fair 
preponderance  of  evidence  is  this :  Preponderance  refers  to  something 
that  may  be  weighed.  Of  course,  we  cannot  get  a  pair  of  scales,  and 
by  .some  arbitrary  method  put  on  one  side  the  testimony  of  the  plain- 
tiff and  on  the  other  side  the  testimony  of  the  defendant  and  say  which 
one  outweighs  the  other,  or  whether  it  is  evenly  balanced,  but  you  are 
to  try  to  do  that  mentally  as  far  as  possible.  The  law  says  that  unless 
the  plaintiff  satisfies  you  throughout  the  entire  case  of  the  correctness 
of  his  story  to  such  an  extent  that  it  outweighs  the  proof  of  the  de- 
fendants, he  cannot  recover.  In  other  words,  if  the  testimony  is  evenly 
balanced,  it  shows  that  there  is  some  doubt  in  your  mind;  that  is  not 
sufficient;  that  is,  if  the  testimony  of  the  plaintiff  weighs  just  the  same 
as  that  of  the  defendant  you  must  find  for  the  defendant;  that  is  the 
law.  The  plaintiff  can  only  recover  where  his  testimony  outweighs 
that  of  the  defendant." 

More  might  be  quoted  from  the  charge  to  show  that  the  trial  court 
most  cogently  and  clearly  impressed  upon  the  minds  of  the  jury  their 
duty  to  weigh  the  evidence  of  the  respective  litigants  and  that  their 
verdict  must  follow  the  preponderance  of  the  evidence.  Under  these 
circumstances  we  think  the  error  in  the  charge  complained  of  is  more 
technical  than  substantial,  and  therefore,  the  judgment  herein  should 
be  affirmed,  with  costs. 

Haight,  Vann,  Werner  and  Hiscock,  JJ.,  concur;  CullEn,  Qi.  J., 
and  O'Brien,  J.,  not  voting;  Wii^lard  Bartlett,  J.,  taking  no  part. 

Judgment  affirmed. 


836  Cases  on  Evidence 

HARTiMAN  BREWING  CO.  v.  CLARK. 
P4  Md.  520.    (1902) 

McShERRY,  C.  J.,  delivered  the  opinion  of  the  court. 

On  the  twenty-sixth  day  of  January,  nineteen  hundred  and  one, 
Eugene  Clark  executed  and  delivered  to  his  wife,  Kate  Clark,  a  bill  of 
sale  of  certain  personal  property  in  consideration  of  an  alleged  ante- 
cedent indebtedness  due  by  the  husband  to  the  wife.    On  the  eighteenth 
day  of  February  follov/ing  the  appellant.  The  Hartman  and  Fehren- 
bach  Brewing  Company,  caused  an  execution  to  be  issued  on  a  judg- 
ment which  the  company  had  obtained  against  Clark  on  December  the 
eighteenth,  eighteen  hundred  and  ninety-nine;  and  the  sheriff  of  Cecil 
County  levied  on  the  personal  property  described  in  and  covered  by 
the  above-mentioned  bill  of  sale.     Thereupon  Mrs.  Clark  filed  a  claim 
of  property  and  the  judgment  debtor  and  creditor  were  summoned  to 
answer  the  claim.     The  judgment  creditor  interposed  several  pleas. 
Those  pleas  put  in  issue  the  wife's  alleged  ownership  of  the  property 
levied  on  and  asserted  that  the  bill  of  sale  was  fraudulent  and  void. 
The  issues  thus  made  went  to  trial  before  a  jury.    Evidence  was  of- 
fered by  the  claimant  tending  to  show  that  the  transfer  of  the  property 
by  the  husband  to  the  wife  was  bona  fide  and  for  a  valuable  considera- 
tion, and  that  it  had  not  been  made  with  intent  to  hinder  and  delay 
the  creditors  of  the  husband.     On  the  part  of  the  judgment  creditor 
evidence  was  adduced  tending  to  prove  precisely  the  contrary.     At 
the  close  of  the  evidence  each  side  asked  instructions  to  the  jury. 
Without  setting  forth  the  several  prayers  at  length  it  will  suffice  to 
say  that  the  point  of  divergence  between  them  is  sharply  and  distinctly 
marked;  and  has  relation,  not  to  the  legal  sufficiency,  but  to  the  char- 
axrter  of  the  evidence  entitling  the  claimant  to  a  verdict.     Both  sides 
agree  as  to  the  substantive  law  of  the  case.     Both  agree  that  if  the 
transfer  from  the  husband  to  the  wife  was  not  bona  fide,  or  was  made 
without  consideration,  the  claimant  is  not  entitled  to  recover.     But 
they  differ  as  to  the  quality  of  the  evidence  necessary  to  support  the 
claim  of  property.    The  prayer  presented  in  behalf  of  Mrs.  Clark  con- 
cedes that  it  was  incumbent  on  her  to  establish  the  relation  of  debtor 
and  creditor  between  her  husband  and  herself ;  whilst  those  offered  by 
the  appellant  insist  this  relation  must  be  proved  "by  the  clearest  and 
most  satisfactory  evidence." 

By  the  second,  third  and  fourth  prayers  of  the  judgment  creditor 
the  trial  court  was  asked  to  rule  that  before  the  claimant  could  re- 


Weight  and  Sufficiency  837 

cover  a  verdict  there  must  be  "the  clearest  and  most  satisfactory  evi- 
dence," or,  "evidence  of  the  clearest  and  most  satisfactory  character" 
that  the  relation  of  debtor  and  creditor  existed  between  the  husband  and 
the  wife  when  the  bill  of  sale  was  made.  In  the  first  prayer  granted 
at  the  instance  of  the  judgment  creditor  the  court  instructed  the  jury 
that  the  claimant  could  not  sustain  her  claim  unless  she  established 
by  "preponderating  testimony"  that  the  bill  of  sale  had  been  given  for 
a  valuable  consideration  and  had  been  made  in  good  faith.  The  verdict 
of  the  jury  was  in  favor  of  the  claimant,  Mrs.  Clark,  and  from  the 
judgment  entered  on  that  verdict  the  creditor  of  the  husband  has  ap- 
pealed. The  error  assigned  is  that  the  court  refused  to  instruct  the 
jury  that  the  claimant  must  show  "by  the  clearest  and  most  satisfac- 
tory evidence"  the  existence  of  the  relation  of  debtor  and  creditor  be- 
tween the  husband  and  the  wife  at  the  time  of  the  execution  of  the 
bill  of  sale. 

The  phrase  "thf  clearest  and  most  satisfactory  evidence"  has  been 
taken  from  an  opinion  of  this  court  in  Stockslager  v.  Mechanics  Loan 
Inst.,  87  Md.  235 ;  and  the  contention  is  that  by  its  use  in  that  case 
this  court  established  a  rule  of  law  as  to  the  quality  or  character  of 
the  evidence  required  to  be  adduced  by  the  wife  in  cases  of  this  kind 
to  sustain  a  conveyance  to  her  by  her  husband  when  that  conveyance 
is  assailed  by  a  pre-existing  creditor  of  the  husband.  In  the  case 
above  referred  to  this  court  was  dealing  with  both  the  law  and  the 
facts  in  an  equity  proceeding,  and  in  dealing  with  both  and  therefore 
with  the  sufficiency  of  the  evidence  and  its  probative  value,  it  was 
said  that  the  wife  could  not  sustain  her  title  to  the  property  acquired 
from  her  husband  in  prejudice  of  the  rights  of  his  creditors  except 
by  the  clearest  and  most  satisfactory  evidence.  But  it  will  be  observed 
that  this  was  laying  down  no  new  rule  of  law ;  nor  was  it  formulating 
any  special  rule  of  evidence  as  applicable  to  this  particular  class  of 
cases.  In  dealing  with  the  whole  evidence — its  weight  and  legal  suffi- 
ciency— it  was  entirely  proper  to  say  that  the  evidence  to  support  the 
wife's  title  must  be  the  clearest  and  most  satisfactory ;  but  how  could 
it  be  possible  to  convey  to  the  minds  of  jurors  any  definite  or  adequate 
notion  of  the  sufficiency  of  evidence  to  prove  an  issue,  if  they  were  told 
that  the  claimant  must  establish  her  case  "by  the  clearest  and  most 
satisfactory  evidence  ?"  Can  it  be  assumed  that  the  jurors  know  What  is 
the  clearest  and  most  satisfactory  evidence  to  establish  any  asserted 
fact?  If  they  were  told  that  they  could  not  find  for  the  claimant  ex- 
cept upon  the  clearest  and  most  satisfactory  evidence,  without  defining 
to  them  what  was  meant  by  those  terms,  would  not  the  instruction  be 


838  Cases  on  Evidence 

most  misleading  and,  therefore,  clearly  erroneous?  What  is  and  what 
is  not  the  clearest  and  most  satisfactory  evidence  is  essentially  a  rela- 
tive questipn,  and  a  relative  question  of  law  and  not  of  fact.  A  court 
in  weighing  facts  which  it  has  to  pass  on  may  well  use  the  expression, 
because  the  expression  as  thus  used  conveys  a  definite  meaning;  but 
when  a  jury  is  instructed  that  they  are  confined  to  the  clearest  and 
most  satisfactory  evidence  without  a  suggestion  as  to  what  is  meant 
by  the  terms,  confusion  and  uncertainty  will  inevitably  result.  If  the 
judgment  creditor  thought  that  the  evidence  adduced  by  the  claimant 
was  not  legally  sufficient  to  sustain  Mrs.  Clarke's  claim  of  property 
because  not  the  clearest  and  most  satisfactory  evidence  that  could  have 
been  presented,  the  judgment  creditor  could  have  procured  a  ruling 
on  that  proposition  by  asking  an  instruction  that  there  was  no  legally 
sufficient  evidence  to  entitle  the  claimant  to  a  verdict.  The  legal  suffi- 
ciency which,  of  course,  includes  the  probative  value  of  the  evidence, 
would  have  been  called  on  to  scrutinize  it  and  to  determine  whether 
it  was  the  clearest  and  most  satisfactory  evidence  to  establish  the  fact 
to  prove  which  it  had  been  offered.  Such  a  course  would  have  been 
widely  different  from  allowing  a  jury  to  speculate  and  grope  about 
without  a  guide  or  direction,  in  a  vain  attempt  to  find  what  was  the 
clearest  and  most  satisfactory  evidence. 

For  the  reasons  we  have  given  we  think  the  Circuit  Court  was 
clearly  right  in  its  rulings  on  the  prayers  and  the  judgment  appealed 
against  will  be  affirmed. 

Judgment  affirmed  with  costs  above  and  below. 


MERRILL  V.  THOMPSON. 

252  Mo.  714.    (1913) 

Woodson,  P.  J.  This  was  a  bill  in  equity  instituted  in  the  Circuit 
Court  of  Livingston  County,  by  the  plaintiffs  against  the  defendants, 
to  quiet  title,  but  in  reality,  to  specifically  enforce  an  oral  contract 
alleged  to  have  been  entered  into  by  and  between  Harriett  A.  Merrill, 
nee  Thompson,  and  her  sister  Sophia,  with  Nathan  Thompson,  their 
father,  whereby  he  agreed  to  convey  to  them  a  certain  forty  acres  of 
land  situated  in  said  county,  and  particularly  described  in  the  bill,  in 
consideration  that  the  former  agreed  to  live  with,  care  for,  support 


Weight  and  Sufficiency  839 

and  maintain  him  and  his  wife,  their  mother,  during  their  natural  lives ; 
Harriett,  alleging  and  claiming  that  she,  prior  to  the  institution  of  the 
suit,  purchased  the  interest  of  her  sister  Sophia,  and  that  she  inter- 
married with  her  co-plaintifF,  William  T.  Merrill. 

A  trial  was  had  and  the  court  found  the  issues  as  to  the  contract 
(title  also  having  been  alleged  to  have  been  acquired  by  the  Statute  of 
Limitation)  in  favor  of  the  plaintiffs  (there  being  no  finding  either 
way  as  to  the  claim  of  title  by  adverse  possession),  and  in  due  time 
and  in  proper  manner  defendant  duly  appealed  the  cause  to  this  court. 

Before  considering  this  assignment  of  errors  we  will  dispose  of  a 
general  objection  urged  by  counsel  against  the  correctness  of  the  de- 
cree, and  that  is,  that  "the  proof  to  sustain  the  alleged  contract  is  based 
solely  upon  the  evidence  of  Fountain  K.  Thompson,  a  brother  of  the 
plaintiff,"  and,  therefore,  the  evidence  is  insufficient  to  sustain  the 
decree. 

If  we  correctly  understand  this  contention  it  challenges  the  suffi- 
ciency of  the  strength  of  the  testimony  of  any  one  witness  to  support 
a  judgment  or  decree  in  a  case  of  this  character  regardless  of  his  in- 
telligence, character  and  standing  in  the  community  for  honesty,  truth 
and  veracity. 

Even  if  this  insistence  was  based  upon  undisputed  facts  (which  it 
is  not,  for  he  is  strongly  corroborated  by  almost  every  physical  and 
undisputed  fact  in  the  case,  which  facts  are  many,  as  will  be  presently 
noted),  we  would  be  unable  to  lend  our  concurrence  thereto,  for  the 
simple  reason  that  the  weight  and  convincing  character  of  testimony 
does  not  depend  so  much  upon  the  number  of  witnesses  who  testify 
in  a  cause,  but  more  upon  the  intelligence,  honesty  and  veracity  of 
those  who  give  evidence  in  a  cause. 

This  rule  has  been  so  long  and  so  firmly  established  in  our  system 
of  jurisprudence,  it  would  be  more  than  a  useless  waste  of  time  and 
energy  to  cite  authority  in  support  thereof. 

We,  therefore,  rule  this  insistence  against  appellant. 

Finding  no  error  in  the  record,  the  judgment  of  the  Circuit  Court 
is 

Affirmed. 


840  Cases  on  Evidence 

GAGE  V.  EDDY. 

ij^  III.  4p2.    (j8pp) 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court: 
This  was  an  action  of  ejectment  brought  by  WilHam  H.  Eddy 
against  Henry  H.  Gage,  to  recover  the  south  twenty  acres  of  the  north 
half  of  the  east  half  of  the  northwest  quarter  section  28,  township  38, 
north,  range  14,  east,  in  Cook  County.  The  action  was  brought  in 
1889,  ^^^  the  first  trial  was  had  in  April,  1892,  when  the  Circuit  Court 
instructed  the  jury  to  find  for  the  defendant.  On  appeal  we  held  the 
instruction  was  erroneous  and  reversed  the  judgment.  (Eddy  v.  Gage, 
147  111.  162.)  A  second  trial  resulted  in  a  verdict  and  judgment  in 
favor  of  the  plaintiff,  but  upon  appeal  the  judgment  was  reversed  on 
account  of  an  error  in  the  exclusion  of  certain  evidence.  (Gage  v. 
Eddy,  167  111.  102.).  A  third  trial  resulted  in  a  verdict  and  judgment 
in  favor  of  the  plaintiff,  to  reverse  which  the  present  appeal  is  prose- 
cuted. 

Objection  is  made  to  instructions  i,  2,  3,  4  and  5  given  for  the 
plaintiff.  These  instructions  are  substantially  like  the  ones  given  in 
Sullivan  v.  Eddy,  154  111.  199,  and  which  were  approved  in  that  case. 
The  eighth  instruction  is  also  criticised.  It  is  as  follows : 
"The  jury  are  instructed  that  the  fact  that  the  number  of  witnesses 
testifying  on  one  side  is  larger  than  the  number  testifying  on  the  other 
side  does  not  necessarily  alone  determine  that  the  preponderance  of 
evidence  is  on  the  side  for  which  the  larger  number  testified.  In  or- 
der to  determine  that  question  the  jury  must  be  governed  by  and  take 
into  consideration  the  appearance  and  conduct  of  the  witnesses  while 
testifying;  the  apparent  truthfulness  of  their  testimony  or  the  lack  of 
it;  their  apparent  intelligence  or  the  lack  of  it;  their  opportunity  of 
knowing  or  seeing  the  facts  or  subjects  concerning  which  they  have 
testified,  or  the  absence  of  such  opportunity;  their  interest  or  the  ab- 
sence of  interest  in  the  result  of  the  case;  and  from  all  these  facts 
as  shown  by  the  evidence,  and  from  all  the  other  facts  and  circum- 
stances so  shown,  the  jury  must  decide  on  which  side  is  the  prepon- 
derance. After  fairly  and  impartially  considering  and  weighing  all 
the  evidence  in  this  case,  as  herein  suggested,  the  jury  are  at  liberty 
to  decide  that  the  preponderance  of  evidence  is  on  the  side  which  in 
their  judgment  is  sustained  by  the  more  intelligent,  the  better  informed, 
the  more  credible  and  the  more  disinterested  witnesses,  whether  these 
are  the  greater  or  the  smaller  number.     But  the  jury  have  no  right 


Weight  and  Sufficiency  841 

to  disregard  capriciously  the  testimony  of  the  larger  number  of  wit- 
nesses, nor  to  refuse  to  give  whatever  consideration,  in  their  judgment, 
should  attach  naturally  to  the  fact  that  the  larger  number  testify  one 
way.  The  element  of"  numbers  should  be  considered,  with  all  the 
other  elements  already  herein  suggested,  for  whatever  in  the  judgment 
of  the  jury  that  element  is  worth,  and  the  evidence  of  the  smaller  num- 
ber cannot  be  taken  by  the  jury  in  preference  to  that  of  the  larger 
number  unless  the  jury  can  say,  on  their  oaths,  that  it  is  more  reason- 
able, more  truthful,  more  disinterested  and  more  credible." 

We  perceive  no  substantial  objection  to  the  instruction.  The  appel- 
lant called  more  witnesses  than  the  plaintiff,  and  the  instruction  in- 
formed the  jury  that  they  had  no  right  capriciously  to  disregard  the 
testimony  of  the  larger  number  of  witnesses.  Surely  the  jury  could 
not  have  been  misled  by  anything  contained  in  the  instruction. 

We  are  satisfied  that  the  judgment  of  the  Circuit  Court  is  correct, 
and  it  will  be  affirmed. 

Judgment  affirmed. 


KIRCHNER  v.  COLLINS. 
152  Mo.  S94.     (1899) 


GanTT,  p.  J.  This  is  an  action  by  plaintiff  for  alleged  services  ren- 
dered to  him  by  defendant  as  an  architect  in  drawing  certain  plans 
and  specifications  for  an  apartment  building  in  the  city  of  St.  Louis, 
at  the  corner  of  Lindell  boulevard  and  Vandeventer  avenue. 

The  issues  of  fact  before  the  jury  were,  whether  the  services  whose 
value  was  sued  for,  were  rendered  to  defendant  Collins  or  to  said  Truitt, 
and  whose  testimony  should  be  credited  by  the  jury,  Truitt's  or  de- 
fendant's. 

The  verdict  was  for  defendant  and  plaintiff  appeals. 

The  second  instruction  for  defendant  is  also  challenged  for  the  use 
of  the  word  "fair"  in  connection  with  the  word  "preponderance."  That 
instruction  is  as  follows : 

"The  court  instructs  the  jury  that  the  burden  of  proof  is  upon  the 
plaintiff  to  maintain  the  issue  in  this  case  on  his  part,  by  a  fair  pre- 
ponderance of  evidence  as  to  whether  or  not  the  plaintiff  was  employed 
by  the  defendant  to  perform  the  services  sued  for  and  testified  to  by 
the  plaintiff ;  and  unless  the  jury  believe  from  the  evidence  that  the 


842  Cases  on  Evidence 

plaintiff  has  so  maintained  the  said  issue,  they  will  find  a  verdict  for 
the  defendant." 

It  is  earnestly  insisted  that  this  qualification  of  the  word  prepon- 
derance is  reversible  error. 

The  rule  that  a  jury  should  find  in  favor  of  the  preponderance  of 
the  evidence  is  very  old  and  the  addition  of  words  of  qualification 
such  as  "clear",  "satisfactory"  and  "fair"  should  be  avoided  lest  they 
be  construed  by  the  jury  as  requiring  a  higher  degree  of  proof  than  is 
furnished  by  the  preponderance  alone. 

In  this  case  most  learned  counsel  have  favored  us  with  different 
constructions  to  be  placed  on  the  word  "fair." 

While  it  is  to  be  avoided  we  are  not  disposed  to  view  it  under  the 
circumstances  of  this  case  as  reversible  error  and  we  can  find  no  case 
where  it  has  been  regarded  of  such  weight.  On  the  contrary  it  has 
been  expressly  ruled  insuffiicient  to  work  a  reversal  in  our  sister  State 
of  Texas.  (McBride  v.  Banguss,  65  Tex,  174;  Adams  v.  Eddy,  29  S. 
W.  Rep.  180;  Cabell  v.  Menczer,  35  S.  W.  Rep.  206.) 

The  judgment  is  affirmed.  BuRGESS,  J.,  concurs;  Sherwood,  J.,  ab- 
sent. 


KNOP  V.  NATIONAL  FIRE  INS.  CO. 
107  Mich.  323.     (1895) 

Assumpsit  by  August  Knop  against  the  National  Fire  Insurance 
Company  of  Hartford,  Connecticut,  on  a  fire  policy.  From  a  judg- 
ment for  plaintiff,  defendant  brings  error.    Reversed. 

Grant,  J.  This  is  an  action  to  recover  for  loss  by  fire  upon  a  policy 
of  insurance  which  covered  $300  on  a  one-story  dwelling  house,  and 
$300  on  household  furniture  and  other  contents.  The  principal  de- 
fense was  that  the  plaintiff  had  made  a  false  statement  under  oath  of 
the  amount  of  the  loss,  and  that  he  himself  set  the  fire  with  intent 
to  defraud  the  defendant. 

I.     The  Circuit  Court  instructed  the  jury  as  follows: 

"Now  I  come  to  a  very  important  question.  It  is  called  in  law 
'fraud'.  Fraud  is  a  trick,  a  deceit,  a  device,  whereby  one  misleads 
another  to  do  something  to  his  prejudice.  In  law,  however,  it  is  not 
to  be  presumed.  It  is  not  even  to  be  guessed  at,  and  not  arrived  at 
by  slight  circumstances.    It  must  be  proven  the  same  ^  any  other 


Weight  and  Sufficiency  843 

substantial  fact  in  the  case.  The  burden  of  proving  fraud  is  upon 
the  one  that  claims  it — the  one  that  charges  it — ^because  it  is  out  of 
the  ordinary.  It  may  be  proven  by  circumstantial  evidence;  but  if 
proven  by  circumstantial  evidence,  the  rule  of  circumstantial  evidence 
being  a  rather  strict  one,  it  must  be  proven  with  force  and  conclusive- 
ness to  this  degree — that  all  the  circumstances  (where  circumstances 
are  relied  upon  to  make  the  proof)  must  point  to  the  one  thing  claimed, 
and  admit  of  no  other  reasonable  explanation.  That  is  the  rule  always 
for  circumstantial  evidence — that  this  must  always  converge  or  direct 
your  mind  between  the  points,  and  not  admit  of  any  other  reasonable 
explanation." 

The  error  in  this  charge  is  manifest.  It  virtually  instructed  the  jury 
that  the  defense  must  be  established  beyond  a  reasonable  doubt.  Mor- 
ley  V.  Insurance  Co.,  85  Mich.  219.  In  that  case  the  erroneous  in- 
struction was  as  follows :  "Proof  of  fraud  should  be  of  such  a  char- 
acter as  to  be  inconsistent  with  any  other  view  than  that  Mr.  Lenhoff 
was  guilty  of  fraud."  In  the  present  case  the  court  instructed  them, 
in  substance,  that  the  facts  relied  upon  to  show  fraud  must  not  admit 
of  any  other  reasonable  explanation.  It  is  perhaps  fair  to  the  jury 
in  this  case  to  say  that  they  must  have  understood  this  instruction  to 
mean  that  they  must  find  the  fraud  proven  beyond  any  reasonable 
doubt,  for  they  were  not  controlled  in  their  verdict  by  the  clear  pre- 
ponderance of  the  evidence.  The  above  instruction  was  given  near 
the  close  of  the  charge,  and  there  is  no  other  language  in  it  to  explain 
or  modify  it.  The  charge,  in  fact,  is  entirely  silent  as  to  the  prepon- 
derance of  evidence. 

Long,  J.  We  concur  with  Mr.  Justice  Grant  on  the  first  point  in  his 
opinion,  and  for  that  reason  a  new  trial  must  be  granted. 

McGrath,  C.  J.,  Montgomery  and  Hooker,  JJ.,  concurred  with 

LONC,  J. 


GRELLA,  Admin,  v.  LEWIS  WHARF  CO. 

211  Mass.  54.     (1911) 

Three  actions  of  Tort,  the  first  by  Marciano  Grella  as  administrator 
of  the  estate  of  his  child  Margherita  Grella,  under  R.  L.  c.  171,  sec.  2, 
as  amended  by  St.  1907,  c.  375,  for  causing  the  death  of  the  plaintiff's 
intestate,  a  girl  fourteen  months  old,  by  negligently  failing  to  keep  in 


844  Cases  on  Evidence  • 

repair  a  balustrade  or  railing  on  the  second  floor  of  a  tenement  build- 
ing of  the  defendant  numbered  259  on  North  street  in  Boston,  the 
second  action,  brought  also  as  administrator,  to  recover  for  conscious 
suffering  of  the  plaintiff's  intestate,  and  the  third  action  by  the  plain- 
tiff personally  for  expenses  incurred  by  reason  of  the  injury  and  death. 
Writs  dated  July  17,  1908. 

Decourcy,  J.  The  deceased,  a  child  fourteen  months  old,  fell 
through  an  opening  caused  by  broken  banisters  in  a  tenement  house  of 
the  defendant,  and  struck  on  the  floor  below.  These  actions  are 
brought,  one  for  her  death,  one  for  her  conscious  suffering,  and  the 
third  for  the  medical  and  funeral  expenses. 

I,  The  defendant's  first  request,  that  upon  all  the  evidence  the 
plaintiff  cannot  recover,  was  rightly  refused.  The  defendant  was  the 
landlord  of  the  plaintiff  Marciano  Grella  and  retained  control  of  the 
common  hallway  where  the  accident  happened.  This  opening  in  the 
balustrade  was  made  after  the  tenancy  began,  had  remained  unguarded 
for  two  or  three  months  before  the  accident,  had  been  called  to  the 
attention  of  the  defendant's  agent  and  could  have  been  repaired  at  a 
trifling  expense.  That  this  constituted  sufficient  evidence  of  negli- 
gence is  not  questioned  by  the  defendant.  Faxon  v.  Butler,  296  Mass. 
500. 

But  it  is  urged  that  the  plaintiff  has  not  sustained  the  burden  of 
showing  due  care.  The  deceased  was  a  child  of  such  tender  years 
that  she  was  incapable  of  exercising  care,  and  this  issue  must  be  de- 
termined by  the  conduct  of  those  in  charge  of  her.  The  mother  testi- 
fied that  she  entrusted  the  child  to  the  custody  of  Angelina  Cardarelli, 
the  fifteen  year  old  daughter  of  a  neighboring  tenant,  who  had  taken 
care  of  the  little  one  on  other  occasions;  and  the  case  apparently  was 
tried  on  the  assumption  that  Angelina's  due  care  must  be  shown. 
Norris  v.  Anthony,  193  Mass.  225. 

The  judge  Was  right  in  refusing  to  give  the  third  request  that  the 
mother's  due  care  in  the  death  case  must  be  proved  beyond  a  reason- 
able doubt.  The  history  of  our  statutes  authorizing  recovery  for  death 
caused  by  negligence  was  thoroughly  reviewed  in  the  recent  cases  of 
Hudson  V.  Lynn  &  Boston  Railroad,  185  Mass.  510,  and  Brooks  v. 
Fitchburg  &  Leominster  Street  Railway,  200  Mass.  8,  but  the  question 
now  raised  was  not  discussed.  The  only  remedy  provided  in  death 
cases  was  by  indictment  until  St.  1881,  c.  199,  first  introduced  a  civil 
action  in  cases  against  common  carriers  and  towns.  When  the  statutes 
were  revised  in  the  PubHc  Statutes  of  1882,  the  indictment  form  of 
remedy  was  left  out  of  the  laws  relating  to  highways  and  common 


Weight  and  Sufficiency  845 

carriers,  although  retained  in  those  concerning  railroads  and  street  rail- 
ways. Pub.  Sts.  c.  52,  §  17;  c.  73,  §  6;  c.  112,  §§  212,  213.  In  1886 
(c.  140)  an  action  of  tort  was  allov.ed  against  street  railways  in  case 
of  the  death  of  persons  other  than  employees.  The  employers'  liabil- 
ity act  of  1887  (c.  270)  provided  a  civil  remedy  for  the  instantaneous 
death  of  an  employee,  and  this  was  extended  to  cases  of  death  after 
conscious  suffering  by  St.  1892,  c.  260.  St.  1897,  c.  416,  relating  to 
gas  and  electric  light  corporations  and  St.  1898,  c.  565,  extending  liabil- 
ity to  all  individuals  and  corporations  for  the  death  of  persons  not  in 
their  employ,  contain  no  provision  for  an  indictment.  This  last  statute 
was  re-enacted  in  R.  L.  c.  171,  §  2,  and  under  it  (as  amended  by  St. 
1907,  c.  375)  the  present  action  was  brought.  It  is  apparent  from  this 
review  that  the  liability  created  by  the  statute  in  question  is  one  for 
which  the  only  form  of  remedy  is  a  civil  proceeding,  and  presumably 
the  rules  of  civil  procedure  are  applicable. 

Generally  the  rule  of  evidence  requiring  proof  beyond  a  reasonable 
doubt  in  criminal  proceedings  does  not  apply  to  civil  actions  even  when 
they  arise  from  an  act  which  is  penal  in  its  nature.  Thus  in  com- 
plaints under  the  bastardy  statute,  it  is  sufficient  to  prove  the  charge 
by  a  preponderance  of  the  evidence.  Richardson  v.  Burleigh,  3  Allen, 
479.  Young  V.  Jakepeace,  103  Mass.  50.  So  in  an  action  to  recover 
a  forfeiture  for  the  sale  of  intoxicating  liquor  to  a  minor,  the  rule 
requiring  proof  beyond  a  reasonable  doubt  does  not  apply.  Roberge 
V.  Burnham,  124  Mass.  277.  So  also  in  an  action  on  a  policy  of  in- 
surance the  defendant  is  not  bound  to  prove  beyond  a  reasonable  doubt 
that  the  fire  was  occasioned  by  the  wilful  and  fraudulent  act  of  the 
plaintiff.  Schmidt  v.  New  York  Union  Mutual  Fire  Ins.  Co.,  i  Gray, 
529.  And  see  Gordon  v.  Parmalee,  15  Gray,  413;  Anderson  v.  Ed- 
wards, 123  Mass.  273 ;  4  Wigmore  on  Evidence,  §  2498.  Whether 
St,  1907,  c.  375,  be  considered  as  essentially  a  remedial  and  remu- 
nerative statute  or  as  a  penal  one,  the  action  brought  under  it  has  the 
elements  and  characteristics  of  a  civil  rather  than  a  criminal  proceed- 
ing. As  was  said  by  C.  Allen,  J.,  in  Kelley  v.  Boston  &  Maine  Rail- 
road, 135  Mass.  448,  449:  "The  civil  action  differs  in  important  par- 
ticulars from  the  remedy  by  indictment.  The  latter  is  not  available 
as  a  matter  of  right,  but  is  a  remedy  in  the  name  of  the  Common- 
wealth, dependent  upon  the  action  of  the  grand  jury,  and  to  be  enforced 
by  or  under  the  direction  of  a  public  officer,  and  according  to  the 
forms  of  criminal  proceedings.  The  civil  action  may  be  instituted 
by  the  executor  or  administrator  of  the  deceased  person  of  his  own 
motion ;  the  trial  will  be  before  the  court,  without  a  jury,  unless  a  jury 


846  Casks  on  EvroENCE 

trial  is  demanded  by  one  of  the  parties ;  in  case  of  trial  by  jury,  the 
damages  are  to  be  assessed  by  the  jury ;  the  burden  of  proof  will  be 
sustained  by  proving  the  issue  by  a  preponderance  of  evidence ;  and  the 
plaintiff  will  recover  or  be  liable  to  costs,  as  the  result  of  the  case  may 
be." 

The  charge  on  the  question  of  due  care  was  ample  and  correct. 


BAUR  GROCERY  CO.  v.  SANDERS  &  HENRICH. 
74  Mo.  App.  657.    (1898) 

Bond,  J.  Plaintiffs  are  creditors  of  Mary  E.  Sanders  and  Charles 
Henrich,  as  copartners  under  the  firm  of  Sanders  and  Henrich,  and 
on  the  twenty-third  of  March,  1897,  plaintiffs  brought  an  attachment 
suit  for  $457.04  and  caused  the  writ  to  be  levied  upon  certain  merchan- 
dise as  belonging  to  their  said  debtors.  The  property  was  sold  by  or- 
der of  the  court.  Thereafter  B.  H.  Sanders  interpleaded  in  the  cause 
and  alleged  that  he  was  the  owner  of  the  attached  property.  Upon 
issues  attacking  his  title  for  fraud,  the  case  was  tried,  and  after  a 
verdict  in  his  favor,  a  judgment  "of  restitutipn  of  the  property  in 
controversy"  was  entered,  from  which  plaintiffs  appealed  to  this  court. 

The  first  instruction  given  for  interpleader,  over  plaintiffs  objection, 
is,  to  wit: 

"The  court  instructs  the  jury  that  fraud  is  never  presumed,  but 
must  be  clearly  proven  to  entitle  a  party  to  relief  on  the  ground  of 
fraud,  and  the  presumption  of  law  is  that  the  business  transactions  of 
every  man  are  done  in  good  faith  and  for  an  honest  purpose,  and  any- 
one who  alleges  that  such  acts  are  done  in  bad  faith  or  for  a  dis- 
honest purpose  takes  upon  himself  the  burden  of  showing,  by  specific 
acts  and  circumstances  tending  to  prove  fraud,  that  such  acts  were 
done  in  bad  faith." 

This  instruction  is  "clearly"  erroneous.  It  violates  the  fundamental 
governing  the  triers  of  the  fact  in  purely  legal  actions,  which  is,  that 
is  sufficient  to  entitle  a  party  having  the  affirmative  of  an  issue  to  a 
verdict  that  the  facts  and  circumstances  tending  to  prove  the  proposi- 
tion asserted  by  him  should  outweigh  the  evidence  to  the  contrary. 
When  the  equilibrium  of  proof  is  destroyed,  it  matters  not  how  slightly, 
the  jury  in  a  civil  action  are  warranted  in  rendering  a  verdict  in  favor 


Weight  and  Sufficiency  847 

of  the  side  to  which  the  beam  tilts.  In  strictly  legal  actions,  fraud, 
like  any  other  fact,  may  be  established  by  a  mere  preponderance  of  the 
evidence,  and  the  issue  as  to  fraud  must  be  submitted  to  the  jury  when- 
ever it  is  inferable  from  all  the  evidence  and  circumstances  character- 
izing the  transaction.  State  to  use  v.  Mason,  112  Mo.  Coc.  cit.  382. 
Contrary  to  these  principles  the  court  in  the  instruction  under  review 
in  effect  told  the  jury  that  to  entitle  plaintiff  to  relief  on  the  issue  of 
fraud,  it  must  be  clearly  proven,  thereby  making  the  verdict  of  the 
jury  depend  not  on  the  preponderance  of  the  testimony,  but  upon  a 
degree  of  proof  implied  by  the  terms  "clearly  proven",  which  terms 
si§fnify  a  greater  degree  of  proof  than  is  implied  in  mere  preponderance 
of  the  evidence.  This  is  not  the  law.  Marshall  v.  Ins.  Co.,  43  Mo. 
586,  affirmed  in  Edwards  v.  Knapp,  97  Mo.  432.  As  this  conclusion 
necessitates  the  reversal  of  this  case,  it  is  unnecessary  to  discuss  the 
other  objections  urged  by  appellant.  It  may  be  well,  however,  to  call 
the  attention  of  the  court  to  the  fact  that  the  judgment  rendered  in 
this  case  was  erroneous  in  so  far  as  it  ordered  the  return  of  the  prop- 
erty which  had  already  been  disposed  of  under  the  orders  of  the  court. 
The  judgment  is  reversed  and  the  cause  remanded. 
All  concur. 


DECKER  v.  SOMERSET  INS.  CO. 
66  Me.  406.     (1877) 

Case  upon  an  insurance  policy  against  fire. 

The  verdict  was  for  the  plaintiff  and  the  defendants  alleged  excep- 
tions. 

Walton,  J.  This  case  is  before  the  law  court  on  motion  and  ex- 
ceptions. It  is  an  action  on  an  insurance  policy  against  fire.  One 
ground  of  defense  is  that  the  fire  was  willfully  set  by  the  plaintiff 
himself,  or  by  his  procurement. 

The  presiding  judge  instructed  the  jury  that  in  order  to  establish 
this  defense,  they  must  find  that  it  had  been  reasonably  established; 
that  is,  that  it  had  been  established  to  their  reasonable  satisfaction; 
that  they  were  to  require  more  evidence  than  they  would  to  estabhsh 
payment  of  a  note,  or  prove  an  account  in  set-off ;  that  they  would  con- 
sider the  gravity  of  the  charge,  and  require  stronger  proof  of  its  truth- 
fulness than  they  would  in  ordinary  cases  arising  out  of  matters  of 


848  Cases  on  Evidence 

contract.  Such  was  the  substance  of  the  charge  upon  this  point ;  and 
it  is  claimed  that  it  must  have  given  the  jury  to  understand  that  some- 
thing more  than  a  mere  preponderance  of  evidence  was  necessary  to 
estabUsh  the  defense,  and  was  therefore  erroneous.  We  think  the 
objection  is  not  sustained.  Certainly  the  judge  did  not  say  in  so  many 
words  that  anything  more  than  a  preponderance  of  evidence  was 
necessary.    Nor  do  we  think  it  is  implied  in  what  he  did  say. 

To  create  a  preponderance  of  evidence,  the  evidence  must  be  sum- 
cient  to  overcome  the  opposing  presumptions  as  well  as  the  opposing 
evidence.  Presumptions,  like  probabilities,  are  of  different  degrees  of 
strength.  To  overcome  a  strong  presumption  requires  more  evidence 
than  to  overcome  a  weak  one.  To  fasten  upon  a  man  a  very  heinous 
or  repulsive  act  requires  stronger  proof  than  to  fasten  upon  him  an 
indifferent  act,  or  one  in  accordance  with  his  known  inclinations.  To 
fasten  upon  a  man  the  act  of  willfully  and  maliciously  setting  fire  to 
his  own  buildings,  should  certainly  require  more  evidence  than  to  es- 
tablish the  fact  of  payment  of  a  note,  or  the  truth  of  an  account  in 
set-off;  because  the  improbability  or  presumption  to  be  overcome  in 
the  one  case  is  much  stronger  than  it  is  in  the  other.  Hence  it  can 
never  be  improper  to  call  the  attention  of  the  jury  to  the  character 
of  the  issue,  and  to  remind  them  that  more  evidence  should  be  re- 
quired to  establish  grave  charges  than  to  establish  trifling  or  indiffer- 
ent ones.  Such  an  instruction  does  not  violate  the  rule  that  in  civil 
suits  a  preponderance  of  evidence  is  all  that  is  required  to  maintain 
the  affirmative  of  the  issue;  for,  as  already  stated,  to  create  a  pre- 
ponderance of  evidence,  it  must  be  sufficient  to  overcome  the  opposing 
presumptions  as  well  as  the  opposing  evidence.  Ellis  v.  Buzzell,  60 
Maine,  209.    Knowles  v.  Scribner,  57  Maine,  495. 

Motion  and  exceptions  overruled. 

Appleton,  C,  J.,  DiCKERSON,  Barrows,  Daneorth  and  LiBBEY,  JJ., 
concurred. 


ROBERGE  V.  BURNHAM. 
124  Mass.  277.     (i8y8) 


Tort  to  recover  a  forfeiture  of  $100,  under  the  St.  of  1875,  c.  99, 
No,  15,  for  selling  intoxicating  liquor  to  John  Roberge,  a  minor  son  of 
the  plaintiff.    At  the  trial  in  the  Superior  Court,  before  Pitman,  J., 


Weight  and  Sufficiency  849 

the  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged 
exceptions,  the  material  parts  of  which  appear  in  the  opinion, 

Morton,  J.  The  statute  under  which  this  action  is  brought  pro- 
vides that  "whoever,  by  himself  or  his  agent  or  servant,  shall  sell  or 
give  intoxicating  liquor  to  any  minor,  or  allows  a  minor  to  loiter  upon 
the  premises  where  such  sales  are  made,  shall  forfeit  one  hundred 
dollars  for  each  offense,  to  be  recovered  by  the  parent  or  guardian  of 
such  minor  in  an  action  of  tort."  St.  1875,  c.  99,  No.  15.  It  was 
the  plain  purpose  of  the  Legislature  to  make  a  person,  who,  like  the 
defendant,  keeps  a  place  for  the  sale  of  intoxicating  liquor,  responsible 
to  the  parent  or  guardian  if  he,  or  an  agent  or  servant  in  his  employ, 
sells  liquor  to  a  minor.  It  does  not  make  knowledge  or  guilty  intent 
one  of  the  elements  of  his  liability.  As  in  the  analogous  case  of  the 
keeper  of  a  billiard  room  or  table,  he  is  required  to  see  at  his  peril 
that  liquor  is  not  sold  to  a  minor,  either  by  himself  personally  or  by 
his  agents  or  servants.  Commonwealth  v.  Emmons,  98  Mass.  6.  The 
facts,  therefore,  which  the  defendant  offered  to  prove,  that  his  agent 
who  made  the  sale  to  the  minor,  John  Roberge,  did  not  know  that  he 
was  a  minor,  and  that  the  defendant  had  instructed  his  agent  not  to 
sell  to  minors,  were  immaterial;  and  the  judge  rightly  ruled  that,  if 
the  jury  were  satisfied  that  the  person  making  the  sale  was  the  agent 
of  the  defendant,  and  acting  within  the  general  scope  of  his  agency, 
the  defendant  would  be  liable,  though  the  agent  was  violating  the 
particular  instructions  of  his  principal. 

The  defendant  asked  the  court  to  instruct  the  jury  "that  their  ver- 
dict should  be  for  the  defendant  unless  upon  the  evidence  they  were 
satisfied  beyond  a  reasonable  doubt  that  the  defendant,  by  himself  or 
his  agent  or  servant,  committed  the  offense  of  selling  intoxicating 
liquor  to  a  minor."    The  presiding  judge  refused  this  request. 

The  rule  of  evidence  requiring  proof  beyond  a  reasonable  doubt  is 
generally  applicable  only  in  strictly  criminal  proceedings.  It  is  founded 
upon  the  reason  that  a  greater  degree  of  probability  should  be  required 
as  a  ground  of  judgment  in  criminal  cases,  which  affect  life  or  liberty, 
than  may  safely  be  adopted  in  cases  where  civil  rights  only  are  as- 
certained. 2  Russell  on  Crimes  (7th  Am.  ed.)  727.  It  often  hap- 
pens that  civil  suits  involve  the  proof  of  acts  which  expose  the  party 
to  a  criminal  prosecution.  Such  are  proceedings  under  the  statute  for 
the  maintenance  of  bastard  children,  proceedings  to  obtain  a  divorce 
for  adultery,  actions  for  assults,  actions  for  criminal  conversation  or 
for  seduction,  and  others  which  might  be  named.  And  in  such  actions, 
which  are  brought  for  the  determination  of  civil  rights,  the  general 


8so  Casbs  on  Evidence 

rule  applicable  to  civil  suits  prevails,  that  proof  by  a  reasonable  pre- 
ponderance of  the  evidence  is  sufficient.  Richardson  v.  Burleigh,  3 
Allen,  479.  Young  v.  Makepeace,  103  Mass.  50.  Anderson  v.  Ed- 
wards, 123  Mass.  273. 

We  are  of  opinion  that  the  same  rule  applies  in  the  case  at  bar.  The 
penalty  to  which  the  defendant  is  liable  can  be  recovered  only  in  an 
action  by  the  parent  or  guardian,  and  not  by  indictment  or  complaint 
under  the  Gen.  Sts.  c.  176,  No.  2.  The  statute  gives  the  plaintiff  the 
right  to  maintain  an  action  of  tort,  which  is  a  civil  action.  It  is  an 
action  given  to  the  party  aggrieved  only,  and  is  in  the  nature  of  a 
remedial  suit.  It  has  all  the  characteristics  of  a  civil  suit ;  it  is  begim 
by  a  writ  in  the  usual  form;  it  is  at  all  times  under  the  control  of  the 
plaintiff,  at  a  term  of  the  court  for  civil  business;  it  is  governed  by 
the  provisions  of  the  practice;  and  an  adverse  judgment  against  the 
defendant  could  not  be  held  to  be  a  conviction  of  a  crime  which  could 
be  shown  to  affect  his  credibility  as  a  witness.  Levy  v.  Gowdy,  2  Allen, 
320.    Williams  v.  Taunton,  16  Gray,  288. 

It  is  true  that  this  action,  like  all  penal  actions,  partakes  somewhat 
of  the  character  of  punishment,  but  this  does  not  make  it  a  criminal 
prosecution.  When  the  Legislature  gives  to  the  plaintiff  a  civil  action, 
partly  remedial  in  its  nature,  it  is  to  be  presumed  that  it  is  intended 
that  the  usual  incidents  of  all  civil  actions  should  attach,  one  of  which 
is  that  proof  by  a  reasonable  preponderance  of  the  evidence  is  suffi- 
cient. 

We  are  therefore  of  opinion  that  the  judge  properly  refused  to  rule 
as  requested  by  the  defendant 

Exceptions  overruled. 


LONIS  v.  LAKE  SHORE,  etc.,  R.  CO. 
Ill  Mich.  458.     (i8py) 

Case  by  Minor  Lonis  against  the  Lake  Shore  &  Michigan  Southern 
Railway  Company  for  personal  injuries.  Fi'om  a  judgment  for  plain- 
tiff, defendant  brings  error.    Affirmed. 

Grant,  J.  This  case  is  the  companion  of  McDuffie  v.  Railway  Co., 
98  Mich.  356.  McDuffie  was  driving,  and  Lonis  was  riding  in  the  same 
wagon  with  him.  The  issue  in  this  case  is  the  same  as  in  the  other, 
and  the  testimony  the  same,  except  some  discrepancies  between  the 


Weight  and  Sufficiency  851 

testimony  of  Lonis  and  McDuffie  upon  this  trial  and  that  given  in  the 
other  case.  All  the  propositions,  except  one,  now  urged  by  the  learned 
counsel  for  the  defendant,  are  substantially  the  same  as  were  urged  in 
that  case.  That  decision  is  the  law  of  this  case,  unless  the  defendant 
has  now  established  facts  which  were  not  established  in  the  former 
case.  Just  after  the  accident,  both  McDuflfie  and  Lonis  made  written 
statements  to  the  agents  of  the  defendant  detailing  how  the  accident 
occurred.  Those  statements  differed  from  their  testimony  given  upon 
the  trial.  It  was  held  in  that  case  that  this  conflict  was  not  so  great  as 
to  justify  the  court  in  directing  a  verdict  for  the  defendant  on  the 
ground  of  contributory  negligence.  We  find  no  such  conflict  in  the 
three  versions  of  the  accident  as  to  justify  the  court  in  directing  a  ver- 
dict for  the  defendant  on  the  ground  of  contributory  negligence. 
We  find  no  such  conflict  in  the  three  versions  of  the  accident  as  to 
justifying  the  court  in  saying  that  either  McDuffie  or  Lonis  was 
barred  of  recovery  on  account  of  this  conflict.  The  jury,  under  proper 
instructions,  were  left  to  determine  what  credence  they  wbuld  give  to 
the  testimony  of  these  parties. 

One  question  which  was  not  raised  upon  the  McDuffie  trial  is  now 
raised.    The  following  request  was  preferred  and  refused: 

"The  jury  are  instructed  that,  as  to  the  question  of  the  giving  of 
the  signals — as  to  whether  or  not  the  whistle  was  blown  and  the  bell 
rung — the  difference  between  positive  and  negative  testimony  is  very 
marked,  and  the  positive  testimony  of  witnesses  who  had  opportunity 
to  know  that  the  signals  were  given  should  outweigh  the  testimony  of 
witnesses  who  did  not  hear  it,  unless  in  some  manner  their  attention 
had  been  called  to  it." 

Five  witnesses  for  the  plaintiff  swear  positively  that  the  signals  were 
not  given,  and  give  their  reasons  why  they  so  testified.  One  other  wit- 
ness, John  Williams,  testified  that  he  was  "looking  right  at  the  en- 
gine," and  that  he  did  not  hear  any  bell  or  whistle.  On  cross-examina- 
tion he  said  "he  did  not  think  he  was  thinking  anything  at  all  about 
any  train  coming;  that  his  attention  was  not  called  directly  as  to 
whether  the  train  whistled  or  whether  it  did  not,  although,  being  out 
of  doors,  he  would  have  heard  it,  probably,  if  it  had  whistled ;  that  he 
would  hardly  think  the  bell  would  ring  without  he  noticed  it  at  such  a 
time  as  that — in  fact,  he  was  talking  about  it  right  away."  On  the  part 
of  the  defendant,  18  witnesses  testified  positively  that  the  signals  were 
given.  We  do  not  think  there  was  negative  testimony  to  which  the 
request  would  have  been  applicable.  The  only  testimony  to  which 
that  term  could  possibly  be  applied  was  that  of  Williams.    But  he  said 


852  Cases  on  Evidence 

that  he  was  looking  at  the  engine,  was  out  of  doors,  and  within  hearing 
distance.  It  seems  improbable,  as  he  testified,  that  he  would  not  have 
heard  them  under  these  circumstances.  The  situation  before  the  jury 
was  one  of  positive  testimony  against  positive  testimony,  and  their  ver- 
dict depended  upon  which  they  believed.  They  have  said  by  their  ver- 
dict that  they  believed  the  5  witnesses  for  plaintiflf,  and  did  not  believe 
the  18  witnesses  for  the  defendant.  If  there  was  any  remedy  for  the 
defendant,  it  lay  with  the  circuit  judge,  who  saw  the  witnesses,  and 
was  better  able  than  we  are  to  determine  whether  the  jury  disregarded 
the  rule  as  to  preponderance  of  evidence,  so  as  to  justify  him  in  grant- 
ing a  new  trial. 

The  judgment  is  affirmed. 
The  other  Justices  concurred. 


BURLES  v.  OREGON,  etc.,  R.  R.  CO.,  et  al. 
4P  Mont.  j<?p.     (19 1 4) 

Mr.  Justice  Holi^oway  delivered  the  opinion  of  the  court. 

This  action  was  prosecuted  by  the  administrator  of  the  estate  of 
Goldie  May  Buries,  deceased,  to  recover  damages  alleged  to  have  been 
suffered  by  her  during  her  lifetime  as  the  proximate  result  of  defend- 
ant's refusal  to  stop  train  No.  3  at  Barrett's  Station  on  June  2y,  19 10, 
and  carry  her  to  Butte.  From  a  judgment  in  favor  of  plaintiff,  and 
from  an  order  denying  a  new  trial,  defendants  appealed. 

Finally,  it  is  insisted  that  the  evidence  is  insufficient  to  justify  the 
verdict.  It  is  not  controverted  that  plaintiflF  gave  a  proper  signal  to 
stop  the  train ;  but  it  is  most  earnestly  urged  upon  us  that  the  evidence 
is  overwhelmingly  preponderant  that  the  engineer  did  not  see  it  and 
could  not  have  seen  it  under  the  circumstances  of  the  case  as  narrated 
by  the  plaintiflF,  and  that  no  answering  signal  was  given.  It  is  true 
that  the  engineer,  the  fireman,  and  brakeman  on  the  train  at  the  time 
each  testified  that  the  stop  signals — two  short  blasts  of  the  whistle — 
were  not  given,  and  the  engineer,  fireman,  and  two  other  employees  of 
the  company  expressed  opinions  that  a  person  in  the  situation  of  the 
plaintiff,  dressed  as  he  was,  could  not  be  seen  for  1,000  feet,  and  that 
the  engineer  could  not  have  distinguished  that  he  was  attempting  to 
stop  the  train  for  more  than  "200  or  300  feet"  (Hughes)  ;  "300  or  400 
feet"  (Palmer) ;  "200  feet"  (Hale) ;  "350  or  400  feet"  (Elwin).    The 


Weight  and  Sufficiency  853 

plaintiff  testified  that  he  was  about  1,000  feet  from  the  train  when  his 
signals  were  answered  by  the  engineer,  L.  K.  Adams,  a  witness  for 
the  plaintiff,  testified  that  he  had  stopped  this  same  train  at  Barrett's 
during  April  and  May,  by  merely  waving  his  hand,  when  the  train  was 
1,050  feet  away,  and  that  his  signal  had  been  seen  and  answered.  The 
preponderance  of  the  evidence  does  not  depend  alone  upon  the  number 
of  witnesses  who  testify  to  a  fact.  The  court  very  properly  told  the 
jury  that,  in  determining  upon  which  side  was  the  preponderance  of 
the  evidence,  they  "should  take  into  consideration  the  opportunities 
of  the  several  witnesses  for  seeing  or  knowing  the  things  about  which 
they  testify,  their  conduct  and  demeanor  while  testifying,  their  interest 
or  lack  of  interest,  if  any,  in  the  result  of  the  suit,  the  probability  or 
improbability  of  the  truth  of  their  several  statements,  in  view  of  all 
the  other  evidence,  facts  and  circumstances  proved  on  the  trial." 

In  view  of  the  many  facts  and  circumstances  appearing  upon  this 
record  which  the  jury  might  have  considered  as  supporting  plaintiff's 
story,  and  which  thfey  doubtless  did  consider  in  weighing  the  evidence 
given  by  the  witnesses  for  the  defendants,  we  cannot  say  that  a  dif- 
ferent result  should  have  been  reached. 

We  do  not  find  any  reversible  error  in  the  record.  The  judgment 
and  order  are  affirmed. 

Affirmed. 

Mr.  Chief  Justice  Branti,y  and  Mr.  Justice  Sanner  concur. 


PAET  vn. 

TOPICS  NOT  PECULIAR  TO  EVIDENCE. 

JUDICIAL  N0TI0E.1 

UNITED  STATES  v.  CHAVES. 
J5P  U.  S.  452.     (1895) 

This  is  an  appeal  on  behalf  of  the  United  States  from  a  decree  of 
the  Court  of  Private  Land  Claims,  made  on  the  26th  day  of  September, 
1892,  in  the  matter  of  the  claim  for  certain  lands  in  Valencia  County, 
New  Mexico,  commonly  called  the  "Cubero"  land  grant. 

The  case  as  presented  in  the  pleadings  is  as  follows : 

It  is  claimed  by  the  petitioners  that  in  the  year  1833  the  Republic 
of  Mexico,  by  Francisco  Sarricino,  the  governor  of  the  Territory  of 
New  Mexico,  granted  to  Juan  Chaves,  and  about  sixty  others,  "and 
to  the  town  of  Cubero,  whose  establishment  and  incorporation  were  in- 
tended and  declared  by  the  terms  of  said  grant,"  a  tract  of  land  now 
situated  in  the  county  of  Valencia,  New  Mexico. 

Mr.  Justice  Shiras,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

A  question  is  raised  in  the  brief  for  the  government  whether  the 
courts  of  the  United  States  can  take  judicial  notice  of  the  laws  and 
regulations  of  Mexico  pertaining  to  grants  made  prior  to  the  cession. 
It  was  said  in  Fremont  v.  United  States,  17  How.  542,  557,  referring 
to  a  similar  question  under  the  treaties  with  Spain,  ceding  territories 
to  the  United  States,  "it  is  proper  to  remark,  that  the  laws  of  these 
territories  under  which 'titles  were  claimed,  were  never  treated  by  the 
court  as  foreign  laws,  to  be  decided  as  a  question  of  fact.  It  was 
always  held  that  the  court  was  bound  judicially  to  notice  them,  as 
much  so  as  the  laws  of  a  State  of  the  Union.  In  doing  this,  however, 
it  was  undoubtedly  often  necessary  to  inquire  into  official  customs 
and  forms  and  usages." 

The  same  position  was  asserted  in  the  case  of  United  States  v. 
Perot,  98  U.  S.  428. 

Affirmed. 

iHughes  on  Evidence,  p.  4. 

854 


■Judicial  Notice  855 

MALONEY  V.  WINSTON  BROS.  CO. 
18  Ida.  740,  757.     (1910) 

Action  by  the  plaintiff  for  damages  for  personal  injury.  Judgment 
for  plaintiff  and  defendant  appealed.    Judgment  modified  and  affirmed. 

AiLSHiE,  J.  This  action  was  prosecuted  for  the  recovery  of  damages 
for  personal  injuries  received  by  the  plaintiff  while  working  in  what 
is  known  as  the  St.  Paul  pass  tunnel,  which  was  being  cut  through 
the  Bitter  Root  mountains  for  the  use  of  the  Chicago,  Milwaukee  & 
St.  Paul  Ry.  Co.  The  east  end  of  this  tunnel  starts  a  short  distance 
from  the  town  of  Taft,  in  Montana,  while  the  west  end  of  the  tunnel 
is  in  Idaho.  The  plaintiff  recovered  judgment  for  $15,000  and  de- 
fendant moved  for  a  new  trial  and  its  motion  was  denied,  and  it  has 
appealed  from  the  judgment  and  order  denying  the  motion. 

The  judgment  will  be  affirmed  to  the  extent  of  $10,000  on  condition 
that  the  respondent  file  within  thirty  days  after  going  down  of  the 
remittitur  a  waiver  of  the  excess  of  $5,000  and  an  acceptance  of  the 
judgment  as  thus  modified.  On  failure  to  do  so  the  judgment  will  be 
reversed  in  toto  and  a  new  trial  granted.  Modified  and  afiirmed  ac- 
cordingly, with  costs  in  favor  of  respondent. 

Sullivan,  C.  J.,  and  Stewart,  J.,  concur. 

ON  REHEARING. 

(December  7,  ipio) 

AiLSHiE,  J.  A  rehearing  was  granted  in  this  case,  and  the  matter 
was  argued  exhaustively  orally,  and  four  separate  briefs  by  different 
counsel  have  been  filed  on  behalf  of  appellants,  in  which  the  questions 
of  fact  involved  are  discussed  and  the  authorities  bearing  on  the  case 
have  been  exhaustively  analyzed  and  considered. 

The  accident  in  this  case  occurred  in  the  tunnel  on  the  Montana  side 
of  the  line  between  Idaho  and  Montana.  It  has  been  argued  on  the  re- 
hearing that  under  the  statutes  and  decisions  of  Montana,  a  recovery 
could  not  be  had  in  this  case  in  Montana,  and  that  it  is  accordingly 
the  duty  of  this  court  to  deny  the  respondent  any  relief.  On  the  propo- 
sition that  respondent  could  not  recover  in  Montana,  counsel  cite  two 
cases  from  the  Supreme  Court  of  that  state — Cummings  v.  Teins  Cop- 
per Co.,  40  Mont.  599,  107  Pac.  904,  and  Osterholm  v.  Boston  &  Mon- 
tana C,  C,  &  S,  M,  Co.,  40  Mont,  $08,  107  Pac.  499;  and  on  the  general 


856  Cases  on  Evidence 

proposition  that  the  respondent  is  bound  by  the  law  of  the  place  where 
the  injury  occurred,  counsel  cite:  Baltimore  &  Ohio  S.  W.  R.  Co.  v. 
Reed,  158  Ind.  25,  92  Am.  St.  293,  62  N.  E.  488,  56  L.  R.  A.  468, 
Chicago  &  E.  I.  R.  Co.  v.  Rouse,  178  111.  132,  52  N.  E.  951,  44  L.  R. 
A.  410;  Alabama  G.  S.  R.  Co.  v.  Carroll,  97  Ala.  126,  38  Am.  St.  163, 
II  So.  803,  18  L.  R.  A.  433 ;  Kansas  City  Ft.  S.  &  M.  R.  Co.  v.  Becker, 
67  Ark.  I,  'j'j  Am.  St.  78,  53  S.  W.  406,  46  L.  R.  A.  814;  Turner  v. 
St.  Clair  Tunnel  Co.,  iii  Mich.  578,  66  Am.  St.  397,  70  N.  W.  146, 
36  L.  R.  A.  134 ;  Mexican  Nat.  R.  Co.  v.  Jackson,  89  Tex.  107,  59  Am. 
St.  28,  33  S.  W.  857,  31  L.  R.  A.  276.  The  trouble  with  the  application 
of  the  rules  announced  by  these  authorities  is  that  in  the  present  case 
the  appellant  failed  to  plead  and  prove  in  the  lower  court  the  laws  of 
Montana  as  a  defense  to  the  action.  We  cannot  take  judicial  notice 
of  the  laws  of  a  sister  state.  In  the  absence  of  pleading  and  proof 
as  to  what  the  laws  are  in  a  sister  state,  we  must  assume  that  the  same 
law  prevails  in  the  foreign  state  that  prevails  here.  The  authorities 
are  uniform  to  this  effect. 

Where  the  question  before  the  court  is  governed  by  the  rule  of  the 
common  law  instead  of  by  statute,  the  court  will  presume,  in  the  ab- 
sence of  proof  to  the  contrary,  that  the  common  law  prevails  in  the 
state  where  the  injury  occurred  and  that  it  is  the  same  in  that  state 
as  in  the  state  of  the  forum.  (5  Ency.  of  Ev.  817-820;  Mountain  Lake 
Land  Co.  v.  Blair,  109  Va.  147,  63  S.  E.  751;  Taber  v.  Seaboard  Air 
Line  Ry.  Co.,  81  S.  C.  317;  62  S.  E.  311. 

After  a  somewhat  laborious  and  tedious  examination  of  this  case  a 
second  time,  we  feel  that  the  original  opinion  correctly  states  the  princi- 
ples of  law  applicable  to  the  case,  and  that  the  conclusion  reached  on 
the  former  hearing  should  stand  as  the  judgment  of  the  court  in  this 
case.  The  judgment  of  the  trial  court  will  therefore  be  affirmed  to 
the  extent  of  $10,000,  on  condition  that  the  respondent  file  within 
thirty  days  after  the  going  down  of  the  remittitur  a  waiver  of  the  ex- 
cess of  $5,000  and  an  acceptance  of  the  judgment  as  thus  modified. 
On  failure  to  do  so,  the  judgment  will  be  reversed  in  toto  and  a  new 
trial  granted.  Modified  and  affirmed  acordingly,  with  costs  in  favor 
of  the  respondent. 

Sullivan,  C.  J.,  concurs. 


1  Hughes  on  E^ridence,  p.  4. 


JuDiciAi,  Notice  857 

HANKINSON  v.  TRENTON. 
51  N.  J.  495.     (1889) 

The  opinion  of  the  court  was  dehvered  by 

Garrison,  J.  This  certiorari  brings  up  the  record  of  the  summary 
proceedings  had  before  one  of  the  police  justices  of  the  city  of  Trenton, 
which  resulted  in  the  conviction  of  the  prosecutor  of  the  violation  of 
an  ordinance  of  the  board  of  excise  commissioners  of  the  said  city. 
Of  the  various  reasons  presented  by  the  prosecutor  for  the  reversal 
of  the  judgment  against  him,  it  will  be  necessary  to  consider  but  one, 
viz.,  that  the  ordinance  of  the  excise  board,  for  the  alleged  violation 
of  which  he  was  convicted,  was  not  offered  or  introduced  in  evidence 
on  the  trial  before  the  magistrate. 

The  complaint  filed  with  the  justice  alleges  that  a  certain  sale  of 
spirituous  liquors  by  the  prosecutor  was  "contrary  to  and  violative  of 
the  ordinance  entitled  'An  ordinance  concerning  inns  and  taverns, 
saloons  and  bowling  alleys,  and  the  sale  of  intoxicating  liquors  in  the 
city  of  Trenton,'  passed  by  the  board  of  excise  commissioners  of  the 
said  city  of  Trenton,  on  the  eleventh  day  of  May,  eighteen  hundred 
and  eighty-seven." 

The  existence  of  this  ordinance  is  obviously  the  foundation  of  the 
entire  proceeding  against  the  prosecutor.  The  record  of  a  conviction, 
resting  solely  upon  this  enactment  as  its  foundation,  would  be  fatally 
defective  if  it  failed  to  show  that  the  justice  had,  as  part  of  the  case 
before  him,  legal  evidence  of  the  existence  of  the  ordinance  which  was 
the  gravamen  of  the  complaint.  When  a  special  power  is  given  to  a 
magistrate  by  statute  to  convict  an  offender  in  a  summary  manner, 
without  a  trial  by  jury,  the  record  must  show  everything  necessary 
to  constitute  a  legal  conviction.  Keeler  v.  Milledge,  4  Zab.  142; 
Doughty  V.  Conover,  13  Vroom  193. 

The  transcript  of  the  proceedings  before  the  police  justice  in  the 
present  case  shows  that,  after  both  sides  had  rested,  a  motion  was 
made  on  behalf  of  the  prosecutor,  that  the  case  be  dismissed,  upon  the 
ground  that  it  had  not  been  shown  that  any  ordinance  had  been  violated 
— "no  ordinance  having  been  introduced  in  evidence" — ^which  motion 
the  justice  denied. 

It  was  suggested  upon  the  argument  that  the  ordinance  in  question* 
was  one  of  which  judicial  notice  might  be  taken.  By  this  view  it  is 
assumed,  as  a  rule  of  evidence,  that  the  acts  of  a  municipality  will  be 
noticed  judicially  by  all  the  courts  thereof.    This  position,  which  finds 


858  Cases  on  Evidence 

some  support  from  the  text  writers,  need  not  now  be  examined,  inas- 
much as  the  ordinance  in  question  is  not  an  enactment  of  the  munici- 
pality of  which  the  pohce  justice  is  a  judicial  officer,  but  is  a  by-law 
or  ordinance  of  one  of  the  city  departments,  to  wit,  the  board  of  ex- 
cise commissioners. 

This  board  is  erected  under  the  provisions  of  "An  act  to  establish 
an  excise  department  in  cities  in  this  state,"  approved  April  8th,  1884 
(Pamph.  L.,  p.  133),  whereby  the  city  council  of  any  city  is  author- 
ized to  provide  for  the  establishment  of  a  board  of  excise  commis- 
sioners, who  shall,  when  organized,  have  the  sole  power  to  make  by- 
laws or  ordinances  regulating  the  liquor  traffic  in  said  city,  and  pre- 
scribing and  enforcing  the  penalty  for  the  violation  thereof. 

The  ordinances  thus  to  be  enacted  are  not  submitted  to  city  council 
for  approval,  but  remain  the  sole  and  separate  acts  of  the  board  of 
excise  commissioners. 

The  extension  of  the  doctrine  of  judicial  notice  to  by-laws  and  enact- 
ments such  as  these  would  be  to  lay  down  the  rule,  that,  before  any 
municipal  court,  no  proof  need  be  offered  of  the  acts  or  proceedings 
of  any  other  department  or  subordinate  body  owing  its  existence  to 
the  same  municipality.  Such  a  doctrine  need  but  be  stated  to  be  its 
own  best  refutation.  It  is,  perhaps,  needless  to  say,  that  not  a  vestige 
of  authority  for  such  a  position  can  be  found. 

The  record  of  this  conviction  therefore  failing  to  show  the  ordinance 
of  the  board  of  excise  commissioners  upon  which  it  rests,  is  fatally 
defective,  and  the  judgment  of  the  police  justice  must,  for  this  reason, 
be  reversed. 


FREMONT  V.  THE  UNITED  STATES. 
58  U.  S,  542-    (1854) 

This  was  an  appeal  from  the  District  Court  of  the  United  States  for 
the  Northern  District  of  California. 

Fremont,  the  appellant,  claimed  title  to  a  large  tract  of  land,  and 
prosecuted  his  claim  before  the  board  of  commissioners,  who  decided 
in  his  favor.  That  decision  having  been  reversed  by  the  District  Court, 
the  case  is  now  brought  here  by  appeal. 

The  title  of  Fremont  was  derived  from  Juan  Alvarado,  to  whom  a 
grant  was  issued,  in  1844,  by  Manuel  Micheltorrena,  then  governor 


Judicial  Notice  859 

and  commandant-general  of  the  department  of  the  Calif ornias,  pur- 
porting to  be  founded  upon  the  patriotic  service  of  Alvarado. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

The  court  have  considered  this  case  with  much  attention.  It  is  not 
only  important  to  the  claimant  and  the  public,  but  it  is  understood  that 
many  claims  to  land  in  California  depend  upon  the  same  principles, 
and  will,  in  effect,  be  decided  by  the  judgment  of  the  court  in  this  case. 

It  is  proper  to  remark,  that  the  laws,  of  these  territories  under  which 
titles  were  claimed,  were  never  treated  by  the  court  as  foreign  laws, 
to  be  decided  as  a  question  of  fact.  It  was  always  held  that  the  court 
was  bound  judicially  to  notice  them,  as  much  so  as  the  laws  of  a  State 
of  the  Union.  In  doing  this,  however,  it  was  undoubtedly  often  neces- 
sary to  inquire  into  official  customs  and  forms  and  usages.  They  con- 
stitute what  may  be  called  the  common  or  unwritten  law  of  every 
civilized  country.  And  when  there  are  no  published  reports  of  judicial 
decisions  which  show  the  reconstruction  of  a  statute,  and  the  powers 
exercised  under  it  by  the  tribunals  or  officers  of  the  government,  it 
is  often  necessary  to  seek  information  from  other  authentic  sources,  such 
as  the  records  of  official  acts,  and  the  practice  of  the  different  tribunals 
and  public  authorities.  And  it  may  sometimes  be  necessary  to  seek 
information  from  individuals  whose  official  position  or  pursuits  have 
given  them  opportunities  of  acquiring  knowledge.  But  it  has  always 
been  held  that  it  is  for  the  court  to  decide  what  weight  is  to  be  given 
to  information  obtained  from  any  of  these  sources.  It  exercises  its 
discretion  when  it  refers  to  the  different  reported  decisions  of  state 
courts,  and  compares  them  together,  in  order  to  make  up  an  opinion 
as  to  the  unwritten  law  of  the  state,  or  the  construction  given  to  one 
of  its  statutes. 

With  these  principles,  which  have  been  adjudicated  by  this  court, 
to  guide  us,  we  proceed  to  examine  the  validity  of  the  grant  to  Alva- 
rado, which  is  now  in  controversy. 

Upon  the  whole,  it  is  the  opinion  of  the  court  that  the  claim  of  the 
petitioner  is  valid,  and  ought  to  be  confirmed.  The  decree  of  the 
district  court  must,  therefore,  be  reversed,  and  the  case  remanded, 
with  directions  to  the  district  court  to  enter  a  decree  conformably  to 
this  opinion. 

ORDER. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  district  court  of  the  United  States  for  the  northern  district  of 
California,  and  was  argued  by  counsel.  On  consideration  whereof,  it 
is  the  opinion  of  this  court  that  the  claim  of  the  petitioner  to  the  land. 


86o  Cases  on  Evidence 

as  described  and  set  forth  in  the  record,  is  a  good  and  valid  claim ; 
whereupon  it  is  now  here  ordered,  adjudged,  and  decreed  by  this  court, 
that  the  decree  of  the  said  district  court  in  this  cause  be  and  the  same 
is  hereby  reversed,  and  that  this  cause  be  and  the  same  is  hereby 
remanded  to  the  said  district  court  for  further  proceedings  to  be  had 
therein,  in  conformity  to  the  opinion  of  this  court. 


EASTERN  BUILDING  AND  LOAN  ASSOCIATION  v. 
WILLIAMSON. 

i8p  U.  S.  122.     (190s) 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

The  law  of  New  York  was  so  proved  in  this  case,  and  the  conten- 
tion is  that  it  was  not  rightly  construed  by  the  South  Carolina  courts; 
that  the  law  of  New  York  which  entered  into  and  formed  a  part  of 
the  contract  sued  on  was  not  given  by  those  courts  the  same  force  and 
effect  that  it  had  in  New  York,  and  that  hence  the  rights  secured  by 
the  Constitution  of  the  United  States  to  the  plaintiff  in  error  were 
denied.  If  it  appeared  that  the  South  Carolina  courts,  without  question- 
ing the  validity,  simply  construed  a  statute  of  New  York,  no  Federal 
question  would  be  presented. 

But  it  is  contended  that  the  construction  of  the  New  York  statutes  as 
applicable  to  this  contract  was  shown  by  the  decisions  of  the  courts 
of  that  state  and  the  opinion  of  one  learned  in  its  laws;  that  there  was 
no  contradictory  testimony,  and,  therefore,  it  was  the  duty  of  the  South 
Carolina  courts  to  find  as  a  fact  that  such  was  the  true  construction. 

After  the  decisions  of  the  courts  of  New  York  were  received  in 
evidence,  their  meaning  and  scope  became  matters  for  the  same  con- 
sideration. While  statutes  and  decisions  of  other  states  are  facts  to 
be  proved,  yet  when  proved  their  construction  and  meaning  are  for 
the  consideration  and  judgment  of  the  courts  in  which  they  have  been 
proved.  Nor  is  the  rule  changed  by  the  testimony  given  in  the  deposi- 
tion of  defendant's  counsel,  for,  as  he  states,  his  opinion  is  based  on 
the  statutes,  the  articles  of  incorporation  and  the  decisions  of  other 
states  under  like  statutes,  articles  of  incorporation  and  by-laws.  No 
witness  can  conclude  a  court  by  his  opinion  of  the  construction  and 
meaning  of  statutes  and  decisions  already  in  evidence.    Laing  v.  Rigney, 


JuDiciAi,  Notice  86  i 

i6o  U.  S.  531.    The  duty  of  the  court  to  construe  and  decide  remains 
the  same. 

Neither  was  the  promise  ultra  vires  the  corporation.  We  are  saved 
from  the  necessity  of  an  extended  discussion  of  these  questions  by  a 
recent  opinion  of  the  Court  of  Appeals  of  New  York  in  the  case  of 
Vought  V.  this  defendant,  Eastern  Building  &  Loan  Association,  de- 
cided December  2,  1902,  172  N.  Y.  508.  It  is  true  that  the  decision 
was  not  offered  in  evidence  on  the  trial  of  this  case  in  the  South  Caro- 
lina court.  It  had  not  then  been  announced.  And  it  is  also  true  that 
we  do  not  take  judicial  notice  of  the  decisions  of  the  courts  of  one 
state  in  a  case  coming  to  us  from  the  courts  of  another.  Hanley  v. 
Donoghue,  116  U.  S.  i,  6;  Chicago  &  Alton  Railroad  v.  Wiggins  Ferry 
Co.,  119  U.  S.  615-622;  Loyd  V.  Matthews,  155  U.  S.  222,  227.  But 
nevertheless  we  may  properly  refer  to  the  opinion  as  a  construction 
of  the  law,  and  the  views  therein  expressed  not  only  commend  them- 
selves to  our  judgment  as  intrinsically  sound,  but  also,  as  the  views 
of  the  law  of  New  York  entertained  by  the  justices  of  its  highest 
court,  have  a  peculiar  and  persuasive  appropriateness. 

We  deem  it  unnecessary  to  add  any  observations  of  our  own  to  these 
satisfactory  declarations  of  the  law  of  New  York. 

We  see  no  error  in  the  record,  and  the  judgment  of  the  Supreme 
Court  of  South  Carolina  is 

Affirmed. 


LAMAR  V.  MICOU. 
114  U.  S.  218.     (1884) 


Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  a  petition  for  a  rehearing  of  an  appeal  from  a  decree  of  the 
Circuit  Court  of  the  United  States  for  the  Southern  District  of  New 
York,  upon  a  bill  filed  against  the  executor  of  a  guardian  by  the  admin- 
istratrix of  his  ward. 

The  law  of  any  State  of  the  Union,  whether  depending  upon  statutes 
or  upon  judicial  opinions,  is  a  matter  of  which  the  courts  of  the  United 
States  are  bound  to  take  judicial  notice,  without  plea  or  proof.  Owings 
V.  Hull,  9  Pet.  607;  Pennington  v.  Gibson,  16  How.  65;  Covington 
Drawbridge  Co.  v.  Shepherd,  20  How.  227.  And  nothing  has  now 
been  adduced  tending  to  show  that,  as  applied  to  the  facts  admitted  by 


862  Cases  on  Evidence 

the  parties,  either  the  law  of  Georgia  or  the  law  of  New  York  was 
other  than  we  have  held  it  to  be. 

The  question  whether,  as  matter  of  fact,  Lamar  acted  with  due  care 
and  prudence  in  making  his  investments,  was  argued  at  the  former 
hearing,  and  no  reason  is  shown  for  reopening  that  question. 

Rehearing  denied. 


UNITED  STATES  v.  PEROT. 
98  U.  S.  428.     (1878) 

Appeal  from  the  District  Court  of  the  United  States  for  the  District 
of  Louisiana. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  claim  in  this  case  is  for  four  leagues  of  land  granted  by  Bernardo 
Fernandez,  commandant  of  the  post  of  Nacogdoches,  under  the  Spanish 
government,  in  the  Province  of  Texas,  to  Pedro  Dolet,  on  the  27th  of 
December,  1795,  and  extended  in  possession  on  the  14th  of  January, 
1796. 

The  claimants  obtained  a  decree  below  for  four  American  or  Eng- 
lish leagues;  and  such  leagues  may  have  been  inadvertently  allowed 
in  some  previous  cases.  But  it  is  evident  that  no  such  leagues  were 
in  the  minds  of  the  parties.  The  leagues  intended  were  Spanish  leagues, 
such  as  were  used  in  land  measures  and  grants  in  Mexico  and  Texas 
at  that  period.  Now  we  are  bound  to  take  judicial  notice  that  the 
Mexican  league  was  not  the  same  as  the  American  league.  The  laws 
of  Mexico,  of  force  in  Texas  previous  to  the  Texan  revolution,  were 
the  laws  not  of  a  foreign,  but  of  an  antecedent  government,  to  which 
the  government  of  the  United  States,  through  the  medium  of  the  Re- 
public of  Texas,  is  the  direct  successor.  Its  laws  are  not  deemed 
foreign  laws ;  for  as  to  that  portion  of  our  territory  they  are  domestic 
laws ;  and  we  take  judicial  notice  of  them.  Fremont  v.  United  States, 
17  How.  542,  557. 

It  is  important  that  the  uniform  practice  and  usage  of  a  country 
should  be  observed  in  the  construction  of  all  grants  made  therein  whilst 
such  usage  prevailed. 

For  this  reason,  we  think  that  in  Texas,  and  in  relation  to  grants 
emanating  from  the  Mexican  government  in  that  province,  before  its 


Judicial  Notice  863 

separation  from  the  parent  State,  the  vara  and  league  recognized  in 
land  measures  there  should  be  respected. 

Allowing  the  claimant,  therefore,  at  the  rate  of  4,428.4  acres  to  the 
league,  according  to  the  rate  above  referred  to,  he  is  entitled  to  a 
decree  for  17,713.6  acres,  instead  of  23,040,  as  decreed  by  the  court 
below,  requiring  a  deduction  of  5,326.4  acres.  If  the  claimant  will 
remit  this  excess,  he  will  be  entitled  to  an  affirmance  for  the  balance, 
namely,  for  17,713.6. 

On  filing  such  remitter,  a  decree  may  be  entered  accordingly ;  and  it  is 

So  ordered. 


CUBA  RAILROAD  COMPANY  v.  CROSBY. 
22^  U.  S.  473.    (1911) 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  action  for  the  loss  of  a  hand  through  a  defect  in  ma- 
chinery, in  connection  with  which  the  defendant  in  error,  the  plaintiff, 
was  employed.  The  plaintiff  had  noticed  the  defect  and  reported  it, 
and,  according  to  his  testimony,  had  been  promised  tliat  it  should  be 
repaired  or  replaced  as  soon  as  they  had  time,  and  he  had  been  told  to 
go  on  in  the  meanwhile.  The  jury  was  instructed  that  if  that  was 
what  took  place  the  defendant  company  assumed  the  risk  for  a  reason- 
able time,  and,  in  effect,  that  if  that  time  had  not  expired  the  plaintiff 
was  entitled  to  recover.  The  jury  found  for  the  plaintiff.  The  acci- 
dent took  place  in  Cuba,  and  no  evidence  was  given  as  to  the  Cuban 
law,  but  the  judge  held  that  if  that  law  was  different  from  the  lex 
fori  it  was  for  the  defendant  to  allege  and  prove  it,  and  that  as  it  had 
pleaded  only  the  general  issue  the  verdict  must  stand.  158  Fed.  Rep, 
144.  The  judgment  was  affirmed  by  a  majority  of  the  Circuit  Court 
of  Appeals.     170  Fed.  Rep,  365.    95  C.  C.  A.  539. 

The  court  below  went  on  the  ground  that  in  the  absence  of  evidence 
to  the  contrary  it  would  "apply  the  law  as  it  conceives  it  to  be,  ac- 
cording to  its  idea  of  right  and  justice ;  or,  in  other  words,  according  to 
the  law  of  the  forum."  We  regard  this  statement  as  too  broad,  and  as 
having  been  wrongly  applied  to  this  case. 

It  may  be  that  in  dealing  with  rudimentary  contracts  or  torts  made 
or  committed  abroad,  such  as  promises  to  pay  money  for  goods  or 


864  Cases  on  Evidence 

services,  or  battery  of  the  person  or  conversion  of  goods,  courts  would 
assume  a  liability  to  exist  if  nothing  to  the  contrary  appeared.  Parrot 
V.  Mexican  Central  Railroad  Co.,  207  Massachusetts,  184.  Such  mat- 
ters are  likely  to  impose  an  obligation  in  all  civilized  countries.  But 
when  an  action  is  brought  upon  a  cause  arising  outside  of  the  juris- 
diction it  always  should  be  borne  in  mind  that  the  duty  of  the  court 
is  not  to  administer  its  notion  of  justice  but  to  enforce  an  obligation 
that  has  been  created  by  a  different  law.  Slater  v.  Mexican  National 
R.  R.  Co.,  194  U.  S.  120,  126.  The  law  of  the  forum  is  material  only 
as  setting  a  limit  of  policy  beyond  which  such  obligations  will  not  be 
enforced  there.  With  very  rare  exceptions  the  liabilities  of  parties  to 
each  other  are  fixed  by  the  law  of  the  territorial  jurisdiction  within 
which  the  wrong  is  done  and  the  parties  are  at  the  time  of  doing  it. 
American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  356.  See 
Bean  v.  Morris,  221  U.  S.  485,  486,  487,  That  and  that  alone  is  the 
foundation  of  their  rights. 

The  language  of  Mr.  Ju.stice  Bradely  in  The  Scotland,  105  U,  S.  24, 
with  regard  to  the  application  of  the  lex  fori  to  a  case  of  collision 
between  vessels  belonging  to  different  nations  and  so  subject  to  no 
common  law,  referred  to  that  class  of  cases  and  no  others,  and  was 
used  only  in  coming  to  the  conclusion  that  foreign  vessels  might  take 
advantage  of  our  Limited  Liability  Act.  See  also  The  Chattahoochee, 
173  U.  S.  540,  550.  Other  exceptional  cases  are  referred  to  in  Amer- 
ican Banana  Co.  v.  United  Fruit  Co.,  ubi  supra,  such  as  those  arising 
in  regions  having  no  law  that  civilized  countries  would  recognize  as 
adequate.  But  as  to  causes  of  action  arising  in  a  civilized  country  the 
disregard  of  the  foreign  law  occasionally  indicated  by  some  English 
judges  before  the  theory  to  be  applied  was  quite  worked  out  must  be 
disregarded  in  its  turn.  The  principle  adopted  by  the  decisions  of  this 
court  is  clear.     See  also  Dicey,  Confl.  of  Laws,  2d  ed.,  647  et  seq. 

We  repeat  that  the  only  justification  for  allowing  a  party  to  recover 
when  the  cause  of  action  arose  in  another  civilized  jurisdiction  is  a 
well  founded  belief  that  it  was  a  cause  of  action  in  that  place.  The 
right  to  recover  stands  upon  that  as  its  necessary  foundation.  It  is 
part  of  the  plaintiff's  case,  and  if  there  is  reason  for  doubt  he  must 
allege  and  prove  it.  The  extension  of  the  hospitality  of  our  courts  to 
foreign  suitors  must  not  be  made  a  cover  for  injustice  to  the  defend- 
ants of  whom  they  happen  to  be  able  to  lay  hold. 

In  the  case  at  bar  the  court  was  dealing  with  the  law  of  Cuba,  a 
country  inheriting  the  law  of  Spain  and,  we  may  presume,  continuing 
it  with  such  ftiodifications  as  later  years  may  have  brought      There  is 


Judicial  Notice  865 

no  general  presumption  that  that  law  is  the  same  as  the  common  law. 
We  properly  may  say  that  we  all  know  the  fact  to  be  otherwise.  Good- 
year Tire  &  Rubber  Co.  v.  Rubber  Tire  Wheel  Co.,  164  Fed.  Rep.  869. 
Whatever  presumption  there  is  is  purely  one  of  fact,  that  may  be  cor- 
rected by  proof.  Therefore  the  presumption  should  be  limited  to  cases 
in  which  it  reasonably  may  be  believed  to  express  the  fact.  Generally 
speaking,  as  between  two  common  law  countries,  the  common  law  of 
one  reasonably  may  be  presumed  to  be  what  it  is  decided  to  be  in  the 
other,  in  a  case  tried  in  the  latter  state.  But  a  statute  of  one  would 
not  be  presumed  to  correspond  to  a  statute  in  the  other,  and  when  we 
leave  common  law  territory  for  that  •  where  a  different  system  pre- 
vails obviously  the  limits  must  be  narrower  still.  Savage  v.  O'Neil, 
44  N.  Y.  298.  Crashley  v.  Press  Publishing  Co.,  179  N.  Y.  27,  32,  33. 
Aslanian  v.  Dostumian,  174  Mass.  328,  331. 

Even  if  we  should  presume  that  an  employe  could  recover  in  Cuba 
if  injured  by  machinery  left  defective  through  the  negligence  of  his 
employer's  servants,  which  would  be  going  far,  that  would  not  be 
enough.  The  plaintiff  recovered,  or,  under  the  instructions  stated  at 
the  beginning  of  this  decision,  at  least  may  have  recovered,  notwith- 
standing his  knowledge  and  appreciation  of  the  danger,  on  the  strength 
of  a  doctrine  the  peculiarity  and  difficulties  of  which  are  elaborately 
displayed  in  the  treatise  of  Mr.  Labatt.  i  Labatt,  Master  &  Servant, 
ch.  22,  esp.  Sec.  424.  To  say  that  a  promise  to  repair  or  replace 
throws  the  risk  on  the  master  until  the  time  for  performance  has  gone 
by,  or  that  it  does  away  with  or  leaves  to  the  jury  what  otherwise 
would  be  negligence  as  matter  of  law  is  evidence  of  the  great  considera- 
tion with  which  workmen  are  treated  here,  but  cannot  be  deemed  a 
necessary  incident  of  all  civilized  codes.  It  could  not  be  assumed 
without  proof  that  the  defendant  was  subject  to  such  a  rule. 

There  was  some  suggestion  below  that  there  would  be  hardship  in 
requiring  the  plaintiff  to  prove  his  case.  But  it  should  be  remembered 
that  parties  do  not  enter  into  civil  relations  in  foreign  jurisdictions 
in  reliance  upon  our  courts.  They  could  not  complain  if  our  courts 
refused  to  meddle  with  their  affairs  and  remitted  them  to  the  place 
that  established  and  would  enforce  their  rights.  A  discretion  is  as- 
serted in  some  cases  even  when  the  policy  of  our  law  is  not  opposed 
to  the  claim.  The  Maggie  Hammond,  9  Wall.  435.  The  only  just 
ground  for  complaint  would  be  if  their  rights  and  liabilities,  when 
enforced  by  our  courts,  should  be  measured  by  a  different  rule  from 
that  under  which  the  parties  dealt. 

Judgment  reversed. 


866  '  Cases  on  Evidence 

CASE  V.  MAYOR  OF  MOBILE. 
30  Ala.  538.      (1857) 

The  appellant  was  fined  $50  by  the  mayor  of  the  city  of  Mobile,  for 
an  alleged  violation  of  an  ordinance,  prohibiting  the  selling  of  liquor 
without  a  license ;  and  removed  the  proceedings,  by  appeal,  into  the  city 
court,  where  the  following  complaint  was  filed  against  him: 

"Mayor,  Aldermen,  and 
Cc«nmon  Council  of  Mobile         Plaintiff  claims  of  defendant  $50,  for 
vs.  violation  of  the  ordinance  set  forth. 

John  Case. 

"Plaintiff  claims  the  sum  of  $50  as  a  fine,  for  that  the  defendant, 
on  the  4th  May,  1856,  did  sell  to  certain  slaves,  whose  names  and 
owners  are  unknown,  one  a  yelloy  boy,  about  thirty-four  years  of  age, 
and  one  a  black  boy,  about  twenty-two  years  of  age,  in  the  city  of 
Mobile,  spirituous  liquors,  without  the  written  permission  of  the  owner, 
master,  or  agent,  contrary  to  the  ordinance  of  said  corporation  then 
in  force,  a  copy  of  which  is  hereto  attached." 

The  defendant  demurred  to  this  complaint,  for  uncertainty  and  in- 
sufficiency, ist,  in  not  giving  the  names  of  the  slaves  or  their  owners; 
2d,  in  not  setting  out  the  ordinance  alleged  to  have  been  violated;  and 
3d,  in  not  alleging  a  breach  of  any  ordinance.  The  overruling  of  this 
demurrer  is  now  assigned  as  error. 

Chamberlain  &  Robinson,  for  appellant. 

Daniel  Chandler,  contra. 

Rice,  C.  J.  In  declaring  on  a  by-law,  the  liability  of  the  defendant 
must  distinctly  appear.  As  the  appellee  in  the  present  case  is  a  munic- 
ipal, or  public  corporation,  the  courts  of  this  State  will  take  judicial 
notice  of  its  charter,  and  of  its  power  to  make  by-laws ;  but  not  of  the 
by-laws  made  by  it.  In  a  complaint  for  a  penalty  under  one  of  its 
by-laws,  the  by-law  must  be  set  forth,  and  the  breach  of  it,  and  the 
right  of  the  plaintiff  to  sue  for  the  penalty.  Company  of  Feltmakers 
V.  Davis,  I  Bos.  &  Pul.  98;  i  Saund.  PI.  &  Ev.  324;  Comyn's  Dig., 
title,  Pleader,  (2  W.  11). 

Tested  by  the  principles  above  stated,  the  complaint  in  this  case  is 
not  sufficient ;  and  the  court  below  erred  in  overruling  the  demurrer 
to  it.  For  that  error,  the  judgment  is  reversed,  and  the  cause  re- 
manded. 


Judicial  Notice  867 

ATKINSON  V.  MOTT. 
102  Ind.  4SI.     (1S85) 

Black,  C.  The  appellees,  Prudence  Mott  and  her  husband,  sued 
the  appellant  to  recover  damages  for  injuries  to  the  property  of  said 
Prudence,  done  by  trespassing  cattle  of  the  appellant. 

The  defendant's  deniurrer  to  each  paragraph  of  the  complaint  for 
want  of  sufficient  facts  was  overruled.  There  wa&  an  answer  in  denial. 
A  jury  returned  a  verdict  for  the  plaintiflF.  The  defendant's  motion 
for  a  new  trial  was  overruled,  and  judgment  was  rendered  on  the 
verdict. 

The  statute  of  1877,  section  4835,  R.  S.  1881,  provides:  "If  any 
domestic  animal  break  into  an  inclosure  or  wander  upon  the  lands  of 
another,  the  person  injured  thereby  shall  recover  the  amount  of  dam- 
age done,  provided,  that  in  townships  where,  by  order  of  the  board 
of  county  commissioners,  said  domestic  animals  are  permitted  to  run 
at  large,  it  shall  appear  that  the  fence  through  which  said  animal  broke 
was  lawful;  but  where  such  animal  is  not  permitted  to  graze  upon  the 
uninclosed  commons,  it  shall  not  be  necessary  to  allege  or  prove  the 
existence  of  a  lawful  fence  in  order  to  recover  for  the  damage  done." 

The  making  of  the  order  of  the  board  of  county  commissioners,  to 
which  reference  is  made  in  this  statute,  is  a  matter  of  which  courts,  in 
such  cases,  will  not  take  notice,  unless  it  be  shown  as  other  facts  must 
be  shown;  and  in  the  absence  of  any  averment  that  such  an  order  had 
been  made,  it  must  be  assumed,  for  the  purposes  of  the  ruling  upon  the 
demurrer,  that  there  was  no  such  order,  and  that,  as  at  common  law, 
the  owner  of  the  trespassing  cattle  was  responsible  to  the  person  in- 
jured. 

We  find  no  error  in  the  record. 

Per  Curiam.  It  is  ordered,  upon  the  foregoing  opinion,  that  the 
judgment  be  affirmed,  at  the  costs  of  the  appellant. 


868  Cases  on  Evidence 

WATT  V.  JONES.    , 
60  Kans.  201.     (iSgg) 

The  opinion  of  the  court  was  delivered  by  Smith,  J.:  The  plaintiff 
was  a  candidate  for  the  office  of  councilman  of  the  fifth  ward  on  the 
populist  or  citizens'  ticket,  he  being  a  duly  qualified  elector  of  said 
ward  and  city,  and  the  said  defendant  was  a  candidate  for  the  same 
office,  in  opposition  to  the  plaintiff.  The  prayer  was  for  a  judgment 
of  ouster,  asking  that  the  defendant  Watt  be  excluded  from  the  said 
office,  and  that  the  plaintiff  Jones  be  awarded  the  same,  and  for  costs. 

This  was  a  civil  action  between  individuals,  and  we  think  the  rule  is 
well  established  that,  in  such  cases,  an  ordinance,  which  is  a  mere  by- 
law of  a  municipal  corporatjon,  must  be  pleaded  either  by  quoting  its 
language  or  stating  the  substance  of  its  provisions.  A  reference  to 
the  title  is  not  sufficient.  Ordinances  stand  on  the  same  footing  as 
private  and  special  statutes,  the  laws  of  other  states,  and  of  foreign 
countries,  and  must  be  averred  and  proved  like  other  facts.  (17  A. 
&  E.  Encycl.  of  L.  262 ;  City  of  Austin  v.  Walton,  68  Tex.  507,  5  S. 
W.  70.) 

Upon  this  question  this  court  has  heretofore  gone  no  further  than  to 
hold  that  in  misdemeanor  cases,  where  an  appeal  is  taken  from  the 
police  court  of  a  city  to  the  District  Court,  the  latter  will  take  judicial 
notice  of  the  ordinance  under  which  the  defendant  is  being  prosecuted. 
In  such  cases  the  District  Court  is  pro  hac  vice  the  police  court.  (City 
of  Solomon  v.  Hughes,  24  Kan.  740,  14  Pac.  281.) 

The  judgment  of  the  court  below  will  be  affirmed. 


GEORGE  W.  WICKERSHAM  v.  RICHARD  JOHNSTON. 

104  Col.  407.     (i8q4) 

McFarland,  J.  The  plaintiff  brought  three  actions  against  the  de- 
fendant, each  upon  a  promissory  note  made  by  the  defendant  to  one 
John  Lancaster,  since  deceased,  who  was  a  British  subject  and  a  resi- 
dent of  England,  where  he  died  testate  on  the  21st  of  April,  1884. 
The  three  actions  were  by  the  consent  of  parties  and  an  order  of  the 
court  consolidated.    The  court  rendered  judgment  for  plaintiff  for  the 


Judicial  Notice  869 

amount  of  the  principal  and  interest  of  said  three  notes,  with  costs, 
etc.    Defendant  appeals  from  the  judgment. 

The  judgment  of  the  lower  court  went  upon  the  theory,  founded  upon 
the  findings,  that  the  two  sons  of  the  deceased,  George  Grantville  Lan- 
caster and  John  Lancaster  (Jr.),  were  appointed  by  the  will  of  the 
deceased  as  the  executors  thereof  and  qualified  as  such ;  and  were  also 
appointed  "administrators  of  the  personal  estate"  of  the  deceased  John 
Lancaster ;  that  the  will  of  the  deceased  was  duly  probated  in  an  Eng- 
lish court;  that  by  said  will  the  said  sons  were  also  made  residuary 
legatees;  and  that  on  November  15,  1880,  the  said  sons,  George  and 
John,  as  such  executors  and  administrators,  and  being  the  owners  of 
said  notes,  "sold,  transferred,  and  set  over'  the  same  to  the  plaintiff 
herein. 

The  main  evidence  in  the  case  introduced  by  plaintiff  is  found  in  a 
certain  commission  to  take  the  testimony  of  said  George  and  John  Lan- 
caster, issued  to  John  C.  New,  consul  general  of  the  United  States  at 
London,  by  which  it  was  undertaken  to  prove  all  the  foregoing  facts 
as  to  the  death  of  John  Lancaster,  deceased,  the  existence  of  the  will, 
its  probate,  issuance  of  letters  testamentary  and  letters  of  administra- 
tion to  the  sons,  etc.  Many  objections  were  made  by  appellant  to  vari- 
ous parts  of  the  evidence  contained  in  said  commission ;  but  we  will 
assume  for  the  present  that  the  evidence  contained  in  said  commission 
sufficiently  shows  the  facts  above  referred  to.  There  was  no  evidence 
at  all  tending  to  show  what  the  law  was  in  the  foreign  country  touch- 
ing any  of  the  questions  which  are  raised  here;  and  it  must,  therefore, 
be  assumed  that  the  law  with  respect  to  those  matters  was  the  same 
there  as  in  California.  (Norris  v.  Harris,  15  Cal.  254;  Hickman  v 
Alpaugh,  21  Cal.  226;  Hiss  v.  Crigby,  32  Cal.  55;  Marsters  v.  Lash, 
61  Cal.  624;  Monroe  v.  Douglas,  5  N.  Y.  447;  Liverpool  etc.  Co.  v. 
Phenix  Ins.  Co.,  129  U.  S.  445.)  This  rule  applies  to  England  as  well 
as  to  sister  states  of  the  American  nation.  In  Liverpool  etc.  Co.  v. 
Phenix  Ins.  Co.,  129  U.  S.  445,  the  Supreme  Court  of  the  United 
States  say :  "The  law  of  Great  Britain  since  the  Declaration  of  Inde- 
pendence is  the  law  of  a  foreign  country,  and  like  any  other  foreign 
law  is  matter  of  fact,  which  the  courts  of  this  country  cannot  be  pre- 
sumed to  be  acquainted  with,  or  to  have  judicial  knowledge  of,  unless 
it  is  pleaded  and  proved." 

The  julgment  is  reversed  and  the  cause  remanded  for  a  new  trial. 


870  Cases  on  Evidence 

NEESE  V.  THE  FARMER'S  INSURANCE  CO. 
^5  Iowa  602.     (1881) 

Action  upon  a  policy  of  insurance.  There  was  a  verdict  and  judg- 
ment for  plaintiff ;  defendant  appeals.  The  facts  of  the  case  are  stated 
in  the  option. 

Beck,  J.  The  plaintiff  was  permitted  to  read  to  the  jury  the  deposi- 
tions of  plaintiff  and  his  wife,  giving  material  testimony  in  his  behalf. 
The  deposition  was  taken  in  Nebraska,  before  a  notary  public  and  his 
official  seal  did  not  disclose  his  name.  Objection  to  the  deposition,  on 
the  grounds  that  the  seal  of  the  notary  did  not  show  the  name  of  the 
officer,  was  made  by  motion  to  suppress,  and  at  the  trial  the  objection 
was  renewed.  It  is  not  shown  that  the  seal  of  the  notary  is  sufficient 
under  the  law  of  Nebraska.  We  will  not  take  judicial  notice  of  the 
statutes  of  Nebraska,  and,  in  the  absence  of  proof,  will  presume  them 
to  be  the  same  as  our  own.  Our  statute  requires  the  seal  of  the  no- 
tary to  show  the  name  of  the  officer.  The  attestation  of  the  notary 
was  therefore,  insufficient.  Stephens  v.  Williams,  46  Iowa,  540.  The 
depositions  ought  to  have  been  excluded. 

Reversed. 


DENVER  &  RIO  GRANDE  RAILROAD  COMPANY  v.  UNITED 

STATES. 

9  N.  M.  38p.    (i8p8) 

Mills,  C.  J.  The  above  entitled  causes  were  considered  and  heard 
as  one  in  this  court.  They  grow  out  of  a  suit  in  trover  brought  in  the 
first  judicial  district  of  this  territory  by  the  United  States  against  the 
Denver  &  Rio  Grande  Railroad  Company,  to  recover  five  thousand 
dollars  alleged  damages  for  the  conversion  of  certain  timber  and  rail- 
road ties  taken  by  the  defendant  from  the  public  lands.  Judgment  was 
given  in  favor  of  the  United  States  for  one  hundred  and  seventy-four 
dollars.  Both  sides  sued  out  writs  of  error  alleging  on  the  one  side 
that  no  judgment  for  any  amount  should  have  been  given  and  upon  the 
other  that  it  was  too  small.  No  evidence  was  taken  in  the  trial  before 
the  lower  court,  as  the  case  was  submitted  entirely  upon  a  stipulation 
and  the  rulings  thereon. 


Judicial  Notice  871 

This  stipulation  evidently  does  not  cover  all  the  facts  in  the  case, 
as  it  fails  to  show  the  contents  of  a  special  act  of  congress,  approved 
June  8,  1872,  and  an  act  amendatory  thereof  approved  March  3,  1877, 
and  as  the  law  required  special  acts  to  be  proven  on  the  trial  of  a 
cause  the  same  as  any  other  fact,  as  its  contents  do  not  appear  in  the 
record  we  can  not  take  judicial  knowledge  thereof.  Leland  v.  Wilkin- 
son, 6  Peters  317;  i  Wharton  on  Ev.,  8,  291,  and  cases  cited  in  note. 

Reversed. 


GREEN  v.  THE  CITY  OF  INDIANAPOLIS. 
22  Ind.  192.     (1864) 

(Complaint  under  a  city  ordinance.) 

Perkins,  J.  Neither  the  by-law,  (the  ordinance  on  which  the  suit 
was  based)  nor  any  section  of  it,  nor  a  copy  of  either,  was  filed  with 
the  complaint,  or  anywhere  appears  in  the  record.  The  complaint  is 
fatally  defective  for  this  reason.     5  Blackf.  236,  8  Ind.  130,  16  Ind. 

273- 

In  this  state,  where  municipal  corporations  are  organized  under  the 
general  law,  the  court  would  take  judicial  notice  of  their  powers  to 
enact  by-laws,  but  not  of  the  fact  that  any  given  one  had  been  enacted. 
As  the  by-law  or  ordinance  in  question,  then,  is  not  in  the  record,  and 
the  court  does  not  take  judicial  notice  of  such  corporate  acts,  we  can 
not  pass  upon  its  legal  construction  or  validity.  Indeed,  we  do  not 
know  that  any  such  exists. 

A  public  statute  need  not  be  set  out  in  pleading,  nor,  in  this  state, 
need  a  private  act  of  the  legislature,  2  G.  &  H.  p.  109.  But  statutes 
of  other  states,  relied  upon  must  be  set  out  by  copy,  and  so  must  by- 
laws of  corporations,  for  they  are  not  statutes  of  the  state. 

If  there  was  no  appeal  from  the  judgment  of  the  mayor  in  these 
cases,  it  might  well  be  that  by-laws  should  not  be  set  out,  but  should 
be  judicially  noticed  by  the  mayor;  but  as  appeals  are  allowed  to  the 
state  courts,  the  acts  of  the  corporations  relied  on  as  foundations  of 
suits  or  defenses  must  be  set  out  in  the  pleadings,  and  proved  on  trials 
to  bring  them  before  the  Appellate  Courts. 

The  record  before  us  shows  no  cause  of  action.  It  is  as  important 
that  a  by-law  sued  on  be  set  out,  as  it  is  that  a  written  instrument 
should  be. 


8/2  Cases  on  Evidence 

Per  Curiam.    The  judgment  below  is  reversed,  with  costs.    Causes 
remanded,  etc. 


OWINGS  &  OWINGS  v.  JAMES  F.  HUIX. 
34  U.  S.  607.     (1835) 

Mr.  Justice  Story,  after  stating  the  facts,  delivered  the  opinion  of 
the  court. 

The  original  suit  was  brought  to  recover  back  the  purchase-money 
paid  by  the  defendant  in  error  for  the  slaves,  and  other  compensation 
for  the  defect  of  title.  The  jury  found  a  verdict  for  the  original  plain- 
tiff, for  two  thousand  six  hundred  and  thirty-six  dollars  and  ninety- 
six  cents,  upon  which  judgment  was  rendered  accordingly;  and  the 
present  writ  of  error  is  brought  to  revise  that  judgment  upon  certain 
bills  of  exceptions  taken  at  the  trial,  on  behalf  of  the  plaintiffs  in  error. 

The  next  objection  was,,  that  the  copy  of  the  original  bill  of  sale  of 
the  slaves  to  Hull,  on  record  in  the  notary's  office,  was  not  evidence, 
unless  the  plaintiff  accounts  for  the  non-production  of  the  original. 
The  validity  of  this  objection  depends  upon  this  consideration,  whether 
the  non-production  of  the  original  was  sufficiently  accounted  for.  It 
was  not  accounted  for  by  any  proofs  offered  on  behalf  of  the  plain- 
tiff; and  unless  the  Circuit  Court  could  judicially  take  notice  of  the 
laws  of  Louisiana,  tliere  was  nothing  before  the  court  to  enable  it  to 
say,  that  the  non-production  of  the  original  was  accounted  for. 

We  are  of  opinion,  that  the  Circuit  Court  was  bound  to  take  judicial 
notice  of  the  laws  of  Louisiana.  The  Circuit  Courts  of  the  United 
States  are  created  by  Congress,  not  for  the  purpose  of  administering 
the  local  law  of  a  single  state  alone,  but  to  administer  the  laws  of  all 
the  states  in  the  Union,  in  cases  to  which  they  respectively  apply.  The 
judicial  power  conferred  on  the  general  government,  by  the  Constitu- 
tion, extends  to  many  cases  arising  under  the  laws  of  the  different 
states.  And  this  court  is  called  upon,  in  the  exercise  of  its  appellate 
jurisdiction,  constantly  to  take  notice  of  and  administer  the  jurispru- 
dence, to  be  proved  in  the  courts  of  the  United  States,  by  the  ordinary 
modes  of  proof  by  which  the  laws  of  a  foreign  country  are  to  be  es- 
tablished; but  it  is  to  be  judicially  taken  notice  of  in  the  same  manner 
as  the  laws  of  the  United  States  are  taken  notice  of  by  these  courts. 

Under  these  circumstances,  we  are  at  liberty  to  examine  the  ob- 


Judicial  Notice  873 

jection  above  stated,  with  reference  to  the  known  laws  of  Louisiana. 
Now,  in  Louisiana,  as,  indeed,  in  all  countries  using  the  civil  law, 
notaries  are  officers  of  high  importance  and  confidence;  and  the  con- 
tracts and  other  acts  of  parties,  executed  before  them  and  recorded  by 
them,  are  of  high  credit  and  authenticity.  Some  contracts  and  convey- 
ances are  not  valid,  unless  they  are  executed  in  a  prescribed  manner, 
before  a  notary;  others  again,  if  executed  by  the  parties  elsewhere, 
may  be  recorded  by  a  notary,  the  protocol  or  original  remains  in  his 
possession  apud  acta;  and  the  act  is  deemed,  what  is  technically  called, 
an  "authentic  act ;"  and  a  copy  of  such  act,  certified  as  a  true  copy  by 
the  notary,  who  is  the  depositary  of  the  original,  or  his  successor,  is 
deemed  proof  of  what  is  contained  in  the  original,  for  the  plain  reason 
that  the  original  is  properly  in  the  custody  of  a  public  officer,  and  not 
deliverable  to  the  parties.  This  will  abundantly  appear,  by  a  reference 
to  the  Civil  Code  of  Louisiana,  from  article  2231  to  article  2250.  Now, 
the  bill  of  sale  in  the  present  case,  is  precisely  in  that  predicament.  It 
was  executed  before  a  notary  in  the  manner  prescribed  by  the  laws  of 
Louisiana ;  the  original  is  in  his  possession,  and  is  an  authentic  act, 
apul  acta:  and,  therefore,  the  party  is  not  entitled  to  the  possession 
of  it,  but  only  to  a  copy  of  it.  So  that  the  absence  of  the  original  is 
sufficiently  accounted  for;  and  the  copy  being  duly  proved,  was  prop- 
erly admissible  in  evidence.  There  was  no  error,  therefore,  in  the 
Circuit  Court,  in  admitting  this  evidence. 

Reversed  and  remanded  on  other  grounds. 


LARUE  v.  INSURANCE  CO. 
68  Kan.  539.     (1904) 

The  opinion  of  the  court  was  delivered  by  Smith,  J.:  Edward 
LaRue,  son  of  the  plaintiff  in  error,  was  insured  in  the  sum  of  $1000 
by  the  Kansas  Mutual  Life  Insurance  Company  under  a  policy  which 
contained  the  following  condition : 

"Military  or  Naval  Service. — ^The  insured  under  this  policy  is  per- 
mitted to  serve  in  the  militia  or  in  the  military  or  naval  force  of  the 
United  States  in  time  of  peace  without  prejudice  to  his  policy ;  and  he 
may  so  serve  in  time  of  war  by  giving  the  company  notice  in  writing, 
and  paying  an  extra  premium  therefor,  not  to  exceed  three  per  cent 
per  annum  upon  the  amount  insured.    But  should  such  notice  not  be 


874  Cases  on  Evidence 

given  and  the  extra  premium  for  war  hazard  not  be  paid  at  the  time 
the  risK  is  incurred,  the  company  will  be  liable  for  the  reserve  only  on 
this  policy,  computed  according  to  the  actuaries'  table  of  mortality  and 
four  per  cent  interest." 

In  September,  1899,  the  policy  being  in  force,  LaRue  enlisted  in  the 
volunteer  service  of  the  United  States  and  went  with  his  regiment  to 
the  Philippine  islands.  No  extra  premium  was  paid  on  the  policy.  In 
May,  1900,  he  was  killed  at  the  village  of  Loculan  in  the  island  of 
Mindanao,  by  a  blow  from  a  weapon  known  as  a  bolo,  in  the  hands  of 
an  insurrecto.  Such  facts  appeared  in  the  proofs  of  death  given  to 
the  company.  This  was  an  action  by  the  mother  of  the  deceased,  and 
beneficiary  under  the  policy,  to  recover  the  full  amount  of  the  insur- 
ance.    She  was  defeated  in  the  trial  court. 

Plaintiff  below  offered  to  prove  that  Loculan,  the  place  where  the 
assured  was  killed,  was  in  a  region  where  there  was  no  armed  resist- 
ance against  the  forces  of  the  United  States ;  that  the  insured  with  his 
company,  was  sent  there  from  the  island  of  Luzon,  after  a  period  of 
active  service,  for  the  purpose  of  having  an  opportunity  to  rest;  that 
the  soldiers  stood  guard  with  empty  guns ;  that  prior  to  the  death  of  the 
insured  there  was  no  disturbance  of  any  kind  on  that  island  or  at  that 
place.  The  offer  of  this  proof  was  rejected,  on  the  ground  that  the 
court  took  judicial  notice  that  the  inhabitants  of  the  island  of  Min- 
danao were  at  the  time  in  a  state  of  insurrection  against  the  sover- 
eignty of  the  United  States  government. 

We  judicially  know  that  under  the  treaty  of  Paris  between  the  United 
States  and  the  kingdom  of  Spain,  signed  December  10,  1898,  the 
Philippine  islands  became  a  part  of  the  territory  of  the  United  States, 
and  that  after  that  time  the  inhabitants  of  those  islands  were  in  a  state 
of  insurrection  against  our  government.  The  existence  of  war  is  a 
political  question  and  not  a  judicial  one.  Courts  take  notice,  without 
proof,  of  the  acts  of  the  different  political  departments  of  the  govern- 
ment. (See  Phillips  v.  Hatch,  i  Dill,  (C.  C.)  571,  Fed.  Cas.  No. 
11,094.) 

In  passing  on  a  claim  of  Lieutenant  Stickle  for  property  lost  en 
route  from  West  Point  to  Manila,  the  war  department,  in  December, 
1901,  through  Secretary  Root,  announced: 

"The  insurrection  in  the  Philippines  against  the  sovereignty  of  the 
United  States  and  the  authority  of  the  government  of  the  Philippine 
islands  is  of  such  character  and  extent  as  requires  the  United  States 
to  prosecute  its  rights  by  military  force,  and  therefore  creates  the  con- 
dition of  war  in  said  archipelago." 


JuDiciAi.  Notice  875 

This  expressian,  however,  was  made  at  a  date  subsequent  to  the 
death  of  LaRue.  On  July  4,  1902,  the  president  issued  a  proclamation 
of  amnesty  as  follows : 

"Whereas,  The  insurrection  against  the  authority  and  sovereignty 
of  the  United  States  is  now  at  an  end,  and  peace  has  been  established 
in  all  parts  of  the  archipelago,  except  in  the  country  inhabited  by  the 
Moro  tribes,  to  which  this  proclamation  does  not  apply;  and 

"Whereas,  During  the  course  of  the  insurrection  against  the  king- 
dom of  Spain  and  against  the  government  of  the  United  States  persons 
engaged  therein,  or  those  in  sympathy  with  or  abetting  them,  commit- 
ted many  acts  in  violation  of  the  laws  of  civilized  warfare,  but  it  is 
believed  that  such  acts  were  generally  committed  in  ignorance  of  those 
laws  and  under  orders  issued  by  the  civil  or  insurrectionary  leaders; 

"Now,  therefore,  be  it  known,  That  I,  Theodore  Roosevelt,  presi- 
dent of  the  United  States  of  America,  by  virtue  of  the  authority  and 
power  vested  in  me  by  the  constitution,  do  hereby  proclaim  and  de- 
clare, without  reservation  or  condition,  except  as»hereinafter  provided, 
a  full  and  complete  pardon  and  amnesty  to  all  persons  in  the  Philippine 
archipelago  who  have  participated  in  the  insurrection  aforesaid." 

The  Moro  tribes  mentioned  in  the  preamble  of  the  proclamation 
inhabit  the  island  of  Mindanao,  where  the  insured  was  killed.  The 
existence  of  an  insurrection  there  was  in  this  form  expressly  recog- 
nized by  the  government. 

It  being  established  that  an  insurrection  existed  in  1901  and  1902, 
the  question  still  remains  whether  courts  will  take  knowledge  of  such 
insurrection  at  a  prior  date,  in  the  absence  of  a  formal  declaration  of 
war.  In  Prize  Cases,  2  Black,  635,  666,  17  L.  Ed.  459,  the  Supreme 
Court  of  the  United  States  has  said : 

"Insurrection  against  a  government  may  or  may  not  culminate  in  an 
organized  rebellion,  but  a  civil  war  always  begins  by  insurrection 
against  the  lawful  authority  of  the  government." 

The  hostile  opposition  which  continued  in  the  Philippine  islands  af- 
ter the  treaty  of  Paris  was  in  the  nature  of  a  civil  war  which,  as 
stated  in  the  above  opinion,  begins  by  insurrection,  and  the  courts 
take  judicial  notice  of  it  as  a  fact  in  history.  In  City  of  Topeka  v. 
Gillett,  32  Kan.  431,  437,  4  Pac.  800,  Mr.  Justice  Valentine,  speaking 
for  the  court  on  the  subject  of  judicial  notice,  said: 

"Courts  may  take  judicial  notice  of  the  census  returns,  of  the  gen- 
eral history  of  the  country,  of  what  the  members  of  the  legislature 
ought  to  know  when  passing  the  statute  which  the  courts  are  called 


876  Cases  on  Evidence 

upon  to  construe;  and,  indeed,  of  what  all  well-informed  persons  ought 
to  know." 

Every  well-informed  person  knows  the  history  of  the  late  war  with 
Spain  and  its  results.  The  accession  of  foreign  territory  is  a  part  of 
the  world's  history.  The  existence  of  an  insurrection  in  the  newly 
acquired  islands  which  continued  against  the  authority  of  the  United 
States  after  that  territory  had  been  obtained  from  Spain  is  an  event 
in  our  national  career  which  every  schoolboy  knows.  Courts  would 
stultify  themselves  by  requiring  proof  of  such  public  matters,  ccni- 
cerning  which  judges  are  informed  in  common  with  all  other  persons 
who  read. 

Knowing  judicially  that  there  was  a  state  of  war  against  the  author- 
ity of  this  nation  in  the  Philippine  islands  immediately  after  they  were 
acquired  from  Spain,  in  1898,  we  also  know  by  recitals  in  the  presi- 
dent's proclamation  that  the  insurrection  had  not  ended  in  1902,  so  far 
as  the  island  of  Mindanao  was  concerned.  While  stationed  on  this 
island  the  command  to  which  LaRue  was  attached  was  in  a  country 
whose  inhabitants  were  in  a  state  of  hostility  to  the  national  authority 
which  he  was  enlisted  to  defend.  The  warlike  spirit  of  these  inhab- 
itants increased  the  peril  of  a  soldier,  active  or  at  rest,  within  that 
territory  in  the  service  of  a  country  to  which  such  insurgents  dis- 
claimed allegiance. 

The  judgment  of  the  court  below  will  be  affirmed.  All  the  judges 
concurring. 


HANLEY  V.  DONOGHUE, 
116  U.  S.  I.     (1885) 


This  was  an  action  brought  by  Michael  Hanley  and  William  F. 
Welch  against  Charles  Donoghue  in  the  Circuit  Court  of  Baltimore 
County,  in  the  State  of  Maryland,  upon  a  judgment  for  $2000,  recov- 
ered by  the  plaintiffs  on  June  4,  1877,  in  an  action  of  covenant  against 
the  defendant,  Charles  Donoghue,  together  with  one  John  Donoghue, 
in  the  Court  of  Common  Pleas  of  Washington  County  in  the  State 
of  Pennsylvania,  and  there  recorded. 

The  declaration  contained  three  counts.  The  first  count  set  forth 
the  recovery  and  record  of  the  judgment  as  aforesaid  in  said  Court  of 
Common  Pleas,  and  alleged  that  it  was  still  in  force  and  unreversed. 


Judicial  Notice  877 

The  second  count  contained  similar  allegations,  and  also  alleged  that  in 
the  former  action  Charles  Donoghiie  was  summoned,  and  property  of 
John  Donoghue  was  attached  by  process  of  foreign  attachment,  but 
he  was  never  summoned  and  never  appeared,  and  that  the  proceedings 
in  that  action  were  duly  recorded  in  that  court.  The  third  count  re- 
peated the  allegations  of  the  second  count,  and  further  alleged  that 
"by  the  law  and  practice  of  Pennsylvania  the  judgment  so  rendered 
against  the  two  defendants  aforesaid  is  in  that  state  valid  and  enforce- 
able against  Charles  Donoghue  and  void  as  against  John  Donoghue," 
and  that  "by  the  law  of  Pennsylvania  any  appeal  from  the  judgment 
so  rendered  to  the  Supreme  Court  of  Pennsylvania  (which  is  the  only 
court  having  jurisdiction  of  appeals  from  the  said  Court  of  Common 
Pleas)  is  requited  to  l>e  made  within  two  years  of  the  rendition  of  the 
judgment,  nevertheless  no  appeal  has  ever  been  taken  from  the  judg- 
ment so  rendered  against  the  said  defendants,  or  either  of  them." 

The  defendant  filed  a  general  demurrer  to  each  and  all  of  the  counts, 
which  was  sustained,  and  a  general  judgment  rendered  for  him.  Upon 
appeal  by  the  plaintiffs  to  the  Court  of  Appeals  of  the  State  of  Mary- 
land, the  judgment  was  affirmed.  59  Maryland,  239.  The  plaintiffs 
thereupon  sued  out  this  writ  of  error,  on  the  ground  that  the  decision 
was  against  a  right  and  privilege  set  up  and  claimed  by  them  under 
the  Constitution  and  laws  of  the  United  States. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

No  court  is  to  be  charged  with  the  knowledge  of  foreign  laws ;  but 
they  are  well  understood  to  be  facts,  which  xnust,  like  other  facts,  be 
proved  before  they  can  be  received  in  a  court  of  justice.  Talbot  v. 
Seeman,  i  Cranch,  i,  38;  Church  v.  Hubbart,  2  Cranch,  187,  236; 
Strother  v.  Lucas,  6  Pet.  763.  768;  Dainese  v.  Hale,  91  U.  S.  13,  20. 
It  is  equally  well  settled  that  the  several  states  of  the  Union  are  to  be 
considered  as  in  this  respect  foreign  to  each  other,  and  that  the  courts 
of  one  state  are  not  presumed  to  know,  and  therefore  not  bound  to  take 
judicial  notice  of,  the  laws  of  another  state.  In  Buckner  v.  Finley,  2 
Pet.  586,  in  which  it  was  held  that  bills  of  exchange  drawn  in  one  of 
the  states  on  persons  living  in  another  were  foreign  bills,  it  was  said 
by  Mr.  Justice  Washington,  delivering  the  unanimous  opinion  of  this 
court:  "For  all  national  purposes  embraced  by  the  Federal  Constitu- 
tion, the  citizens  thereof  are  one,  united  under  the  same  sovereign 
authority,  and  governed  by  the  same  laws.  In  all  other  respects,  the 
states  are  necessarily  foreign  to  and  independent  of  each  other.  Their 
constitutions  and  forms  of  government  being,  although  republican, 
altogether  different,  as  are  their  laws  and  institutions,"    2  Pet.  590. 


878  Cases  on  Evidence 

Judgments  recovered  in  one  State  of  the  Union,  when  proved  in 
the  courts  of  another,  differ  from  judgments  recovered  in  a  foreign 
country  in  no  other  respect  than  that  of  not  being  re-examinable  upon 
the  merits,  nor  impeachable  for  fraud  in  obtaining  them,  if  rendered 
by  a  court  having  jurisdiction  of  the  cause  and  of  the  parties.  Buck- 
ner  v.  Finley,  2  Pet.  592;  M'Elmoyle  v.  Cohen,  13  Pet.  312,  324; 
D'Arcy  v.  Ketchum,  11  How.  165,  176;  Christmas  v.  Russell,  5  Wall. 
290,  305 ;  Thompson  v.  Whitman,  18  Wall.  457. 

Congress,  in  the  execution  of  the  power  confered  upon  it  by  the 
Constitution,  having  prescribed  the  mode  of  attestation  of  records  of 
the  courts  of  one  state  to  entitle  them  to  be  proved  in  the  courts  of 
another  state,  and  having  enacted  that  records  so  authenticated  shall 
have  such  faith  and  credit  in  every  court  within  the  United  States  as 
they  have  by  law  or  usage  in  the  state  from  which  they  are  taken,  a 
record  of  a  judgment  so  authenticated  doubtless  proves  itself  without 
further  evidence;  and  if  it  appears  upon  its  face  to  be  a  record  of  a 
court  of  general  jurisdiction,  the  jurisdiction  of  the  court  over  the 
cause  and  the  parties  is  to  be  presumed  unless  disproved  by  extrinsic 
evidence  or  by  the  record  itself.  Knowles  v.  Gaslight  &  Coke  Co.,  19 
Wall.  58 ;  Settlemier  v.  Sullivan,  97  U.  S.  444.  But  Congress  has  not 
undertaken  to  prescribe  in  what  manner  the  effect  that  such  judgments 
have  in  the  courts  of  the  state  in  which  they  are  rendered  shall  be 
ascertained,  and  has  left  that  to  be  regulated  by  the  general  rules  of 
pleading  and  evidence  applicable  to  the  subject. 

Upon  principle,  therefore,  and  according  to  the  great  preponderance 
of  authority,  (as  is  shown  by  the  cases  collected  in  the  margin)  when- 
ever it  becomes  necessary  for  a  court  of  one  state,  in  order  to  give  full 
faith  and  credit  to  a  judgment  rendered  in  another  state,  to  ascer- 
tain the  effect  which  it  has  in  that  state,  the  law  of  that  state 
must  be  proved,  like  any  other  matter  of  fact.  The  opposing 
decisions  in  Ohio  v.  Hinchman,  27  Penn,  St,  479,  and  Paine  v.  Schen- 
ectady Ins.  Co.,  II  R.  I.  411,  are  based  upon  the  misapprehension  that 
this  court,  on  a  writ  of  error  to  review  a  decision  of  the  highest  court 
of  one  state  upon  the  faith  and  credit  to  be  allowed  to  a  judgment  ren- 
dered in  another  state,  always  takes  notice  of  the  laws  of  the  latter 
state;  and  upon  the  consequent  misapplication  of  the  postulate  that 
one  rule  must  prevail  in  the  court  of  original  jurisdiction  and  in  the 
court  of  last  resort. 

When  exercising  an  original  jurisdiction  under  the  Constitution  and 
laws  of  the  United  States,  this  court,  as  well  as  every  other  court  of 


Judicial  Notice  879 

the  National  Government,  doubtless  takes  notice,  without  proof,  of  the 
laws  of  each  of  the  United  States. 

But  in  this  court,  exercising  an  appellate  jurisdiction,  whatever  was 
matter  of  law  in  the  court  appealed  from  is  matter  of  law  here,  and 
whatever  was  matter  of  fact  in  the  court  appealed  frc«n  is  matter  of 
fact  here. 

In  the  exercise  of  its  general  appellate  jurisdiction  from  a  lower 
court  of  the  United  States,  this  court  takes  judicial  notice  of  the  laws 
of  every  State  of  the  Union,  because  those  laws  are  known  to  the 
court  below  as  laws  alone,  needing  no  averment  or  proof.  Course  v. 
Stead,  4  Dall.  22,  27,  note;  Hinde  v.  Vattier,  5  Pet.  398;  Owins  v. 
Hull,  9  Pet.  607,  625 ;  United  States  v.  Turner,  1 1  How.  663,  668 ; 
Pennington  v.  Gibson,  16  How.  65 ;  Covington  Drawbridge  Co.  v. 
Shepherd,  20  How,  227,  230;  Cheever  v.  Wilson,  9  Wall.  108;  Junc- 
tion Railroad  Co.  v.  Bank  of  Ashland,  12  Wall.  226,  230;  Lamar  v. 
Micou,  114  U.  S.  218. 

But  on  a  writ  of  error  to  the  highest  court  of  a  state,  in  which  the 
revisory  power  of  this  court  is  limited  to  determining  whether  a  ques- 
tion of  law  depending  upon  the  Constitution,  laws  or  treaties  of  the 
United  States  has  been  erroneously  decided  by  the  state  court  upon 
the  facts  before  it — while  the  law  of  that  state,  being  known  to  its 
courts  as  law,  is  of  course  within  the  judicial  notice  of  this  court  at 
the  hearing  on  error — yet,  as  in  the  state  court  the  laws  of  another  state 
are  but  facts,  requiring  to  be  proved  in  order  to  be  considered,  this 
court  does  not  take  judicial  notice  of  them,  unless  made  part  of  the 
record  sent  up,  as  in  Green  v.  Van  Buskirk,  7  Wall.  139.  The  case 
comes,  in  principle,  within  the  rule  laid  down  long  ago  by  Chief  Jus- 
tice Marshall:  "That  the  laws  of  a  foreign  nation,  designed  only  for 
the  direction  of  its  own  affairs,  are  not  to  be  noticed  by  the  courts  of 
other  countries,  unless  proved  as  facts,  and  that  this  court,  with  respect 
to  facts,  is  limited  to  the  statement  made  in  the  court  below,  cannot 
be  questioned."    Talbot  v.  Seeman,  i  Cranch,  i,  38. 

Where  by  the  local  law  of  a  state,  (as  in  Tennessee,  Hobbs  v.  Mem- 
phis &  Charleston  Railroad,  9  Heiskell,  873),  its  highest  court  takes 
judicial  notice  of  the  laws  of  other  states,  this  court  also,  on  writ  of 
error,  might  take  judicial  notice  of  them.  But  such  is  not  the  case 
in  Maryland,  where  the  Court  of  Appeals  has  not  only  affirmed  the 
general  rule  that  foreign  laws  are  facts,  which,  like  other  facts,  must 
be  proved  before  they  can  be  received  in  evidence  in  courts  of  justice; 
but  has  held  that  the  effect  which  a  judgment  rendered  in  another  state 
has  by  the  law  of  that  state  is  a  matter  of  fact,  not  to  be  judicially 


88o  Cases  on  Evidence 

noticed  without  allegation  and  proof;  and  consequently  that  an  allega- 
tion of  the  effect  which  such  a  judgment  has  by  law  in  that  state  is 
admitted  by  demurrer.  Baptiste  v.  De  Volunbrun,  5  Har.  &  Johns, 
86,  98;  Wernwag  v.  Pawling,  5  Gill  &  Johns.  500,  508;  Bank  of  United 
States  V.  Merchants'  Bank,  7  Gill,  415,  431 ;  Coates  v.  Mackey,  56 
Maryland,  416,  419. 

From  these  considerations,  it  follows  that  the  averment,  in  the  third 
count  of  the  declaration,  that  by  the  law  of  Pennsylvania  the  judgment 
rendered  in  that  state  against  Charles  Donoghue  and  John  Donoghue 
was  valid  and  enforceable  against  Charles,  who  has  been  served  with 
process  in  that  state  and  void  against  John,  who  had  not  been  so 
served,  must  be  considered,  both  in  the  courts  of  Maryland,  and  in  this 
court  on  writ  of  error  to  one  of  those  courts,  an  allegation  of  fact,  ad- 
mitted by  the  demurrer. 

Upon  the  record  before  us,  therefore,  the  plaintiff  appears  to  be  en- 
titled, under  the  Constitution  and  laws  of  the  United  States,  to  judg- 
ment on  this  count.  It  having  been  admitted  at  the  bar  that  the  other 
counts  are  for  the  same  cause  of  action,  it  is  unnecessary  to  consider 
them.  The  general  judgment  for  the  defendant  is  erroneous,  and  the 
rights  of  both  parties  will  be  secured  by  ordering,  in  the  usual  form, 
that  the 

Judgment  of  the  Court  of  Appeals  of  Maryland  be  reversed,  and 
the  case  remanded  to  that  court  for  further  proceedings  not  inconsistent 
with  this  opinion. 


PBESUMPTIONS.1 

EUREKA  SPRINGS  RY.  v.  TIMMONS. 

31  Ark.  43p.     (18S8) 

Hughes,  J.  While  a  passenger  in  one  of  the  coaches  on  the  rail- 
way of  appellant  en  route  from  Seligman,  Missouri,  to  Eureka  Springs, 
Arkansas,  appellee  received  personal  injuries,  by  the  coach  in  which  he 
was  seated  leaving  the  track  of  the  road,  and  turning  over  down  an 
embankment. 

The  court  overruled  the  motion  for  a  new  trial,  defendant  excepted 
and  appealed  to  this  court. 


1  Hughes  on  Evidence,  p.  9. 


Presumptions  881 

The  appellants  counsel  insist  that  the  injury,  if  any,  was  received 
in  the  State  of  Missouri  on  the  Missouri  and  Arkansas  Railway,  which 
is  a  corporation  existing  in  said  state,  and  organized  under  its  laws,  and 
that  no  action  will  lie  in  Arkansas,  unless  it  be  shown,  first,  that  the 
Eureka  Springs  Railway  Company  had  purchased  or  leased  the  road 
owned  by  the  Missouri  corporation,  or  that  said  road  had  been  legally 
consolidated  with  the  Arkansas  road  as  provided  in  sees.  551 1,  5516, 
Mansfields  Digest;  and  cites  authorities  to  show  that  a  corporation 
can  exist  only  in  the  state  of  its  creation.  The  complaint  alleges,  how- 
ever, and  the  answer  does  not  deny  that  the  Eureka  Springs  Railway 
Company  was  operating  its  trains  over  the  other  road  at  the  time  the 
accident  occurred  and,  therefore,  if  the  evidence  warrant's,  the  company 
is  liable  at  common  law,  being  at  the  time  a  common  carrier.  In  the 
absence  of  proof  to  the  contrary  the  courts  of  this  state  will  presume 
the  common  law  to  be  in  force  in  Missouri.  Thorn  v.  Weatherly,  50 
Ark.,  237,  and  cases  cited. 

Finding  no  substantial  error  the  judgment  is  affirmed. 


McLaughlin  v.  souvereign  camp,  w.  o.  w. 

P7  Neh.  71.     (19 1 4) 

Sedgwick,  J.  This  is  an  action  on  a  fraternal  beneficiary  certificate 
for  $1,000  issued  by  defendant  to  James  W.  McLaughlin.  PlaintiflF  is 
the  mother  of  assured,  and  is  named  in  the  certificate  or  insurance  con- 
tract as  beneficiary.  In  the  petition  it  is  alleged  that  assured  is  dead, 
and  that  he  and  plaintiff  performed  all  of  the  conditions  of  the  contract 
on  their  part.  These  allegations  and  the  liability  of  defendant  are 
denied  in  its  answer.  From  judgment  in  favor  of  plaintiflF  for  the  full 
amount  of  her  claim,  defendant  has  appealed. 

There  is  no  direct  evidence  that  the  assured  is  dead.  To  establish 
the  fact  and  the  resulting  liability  of  defendant,  plaintiff  relied  on 
proof  of  assured's  absence  without  tidings  for  more  than  seven  years. 
The  beneficiary  certificate  became  effective  as  an  insurance  contract 
May  2,  1900.  At  that  time  assured  was  an  unmarried  man,  about  24 
years  of  age,  resided  with  his  father  and  mother  and  other  members  of 
their  family  at  O'Neill,  Nebraska.  Shortly  afterwards  he  went  to 
Park  City,  Utah,  and  worked  in  a  mine.  While  there  he  wrote  and 
posted  family  letters  regularly,  and  sent  money  to  his  mother.    Early  in 


882  Casks  on  Evidence 

1904  he  left  Utah  and  went  to  Lima,  Peru.  His  father  and  mother  re- 
ceived from  him  a  letter  dated  at  that  place  March  30,  1904,  in  which  he 
said  he  had  changed  his  residence  because  he  thought  he  could  do  better 
down  there,  and  stating:  "I  am  going  up  to  a  place  called  Cerro  de 
Pasco,  so  I  cannot  give  you  any  address  with  letter,  but  will  write  you 
when  I  get  settled."  A  companion,  who  went  with  him  to  Lima,  but 
who  promptly  returned  to  Park  City,  wrote  to  assured's  father  as  fol- 
lows :  "We  stayed  in  the  city  of  Lima,  Peru,  a  couple  of  weeks  and 
I  not  seeing  any  favorable  chances  for  work  and  not  liking  the  climate, 
started  for  home.  Jim  refused  to  come  with  me,  saying  that  he  would 
try  the  mines  first.  On  the  day  that  I  left  there  I  saw  him  at  the 
train  starting  for  the  mines  of  the  Cerro  de  Pasco  Mining  Company 
which  are  located  about  sixty  m.iles  from  the  city."  Assured  has  never 
since  been  heard  of. 

The  best  authorities,  with  substantial  unanimity,  hold  that  whether 
seven  years'  continued  absence  from  one's  usual  place  of  residence 
will  raise  the  presumption  of  death  must  depend  largely  upon  the  cir- 
cumstances and  conditions  of  each  particular  case.  Upon  this  point 
the  Supreme  Court  of  Kansas,  which  has  perhaps  required  as  strict 
proof  to  raise  this  presumption  as  has  any  court  in  this  country,  said : 
"It  is  conceived,  however,  that  the  character  of  the  inquiry,  the  per- 
sons of  whom  it  must  be  made,  and  the  place  or  places  where  it  must 
be  made  are  all  to  be  determined  by  the  circumstances  of  the  case." 
Modern  Woodmen  of  America  v.  Gerdom,  72  Kan.  391,  In  that  case 
and  in  Renard  v.  Bennett,  76  Kans.  848,  the  court  appears  to  adopt 
the  rule  that,  when  a  young  unmarried  man  leaves  the  home  of  his 
parents  and  goes  from  place  to  place  for  some  time,  corresponding, 
and  nothing  is  heard  from  him  for  more  than  seven  years,  inquiry 
must  be  made  at  all  places  and  of  all  people  where  there  was  any 
probability  that  information  might  be  obtained.  But,  in  general,  the 
courts  of  this  country  have  held,  as  did  the  supreme  court  of  Wis- 
consin, that  it  "does  not  require  proof  of  diligent  search  and  inquiry 
in  order  to  establish  the  presumption  of  death  when  a  person  has 
absented  himself  from  his  home  or  place  of  residence  for  seven  years." 
Miller  v.  Souvereign  Camp,  W.  O.  W.,  140  Wis.  505.  The  Supreme 
Court  of  Minnesota  approved  this  instruction:  "If  you  find  from 
the  evidence  that  on  the  17th  day  of  July,  1901,  Behlmer  (that  is, 
Fred)  left  his  home,  wife,  and  children,  and  that  he  has  never  re- 
turned, and  that  no  tidings  from  him  have  ever  been  received  by  his 
family,  a  presumption  arises  after  seven  years  that  he  is  dead."    Behl- 


Presumptions  883 

mer  v.  Modern  Woodmen  of  America,  146  la,  i ;  Oziah  v.  Howard, 
149  la.  199. 

In  Thomas  v.  Thomas,  16  Neb.  553,  it  was  held  that  a  wife  could  not 
rely  upon  the  presumption  of  the  death  of  her  husband  because  of 
his  absence  from  her  for  a  period  of  seven  years,,  when  she,  after  he 
had  left  her,  removed  from  state  to  state,  establishing  new  places  of 
residence,  and  had  made  no  inquiry  at  her  place  of  residence  at  the 
time  her  husband  left  her.  And,  when  the  same  case  was  before  this 
court  lipon  a  subsequent  appeal  (19  Neb,  81),  the  court  held  that  the 
fact  that  the  husband  had  been  seen  alive  within  the  seven  years  over- 
came the  presumption  of  his  death.  But  upon  the  first  appeal  it  was 
definitely  decided  that,  if  he  had  been  absent  for  a  period  of  seven 
years,  and  during  that  time  had  not  been  heard  from  "by  those  who, 
were  he  living,  would  naturally  hear  from  him,"  this  was  sufficient  to 
raise  the  presumption  of  death.  Surely  it  cannot  be  said  that,  under  the 
evidence  in  this  case,  the  finding  of  the  trial  court  is  so  unsupported 
that  we  must  say,  as  matter  of  law,  that  it  is  clearly  wrong. 

The  findings  and  judgment  of  the  trial  court  are  not  so  unsupported 
by  the  evidence  that  we  can  say  they  are  clearly  wrong.  The  judgment 
is  therefore 

Affirmed. 


COE  V.  NATIONAL  COUNCIL  OF  K.  &  L.  of  S. 
p(5  Neh.  ISO.     (1914) 

Letton,  J.  This  is  an  action  to  recover  upon  an  insurance  certifi- 
cate.   Plaintiff  recovered,  and  defendant  appeals. 

Harry  F.  Ganson,  on  September  8,  1910,  was  a  dentist,  residing  in 
Nebraska  City,  about  44  years  of  age.  He  had  been  married  twice. 
The  family  consisted  of  his  second  wife  with  their  three  children,  the 
oldest  being  8  and  the  youngest  4  years  of  age.  The  ward  of  plain- 
tiff, who  is  a  daughter  by  the  first  wife,  also  lived  in  the  family.  Dr. 
Ganson  had  lived  in  Nebraska  City  for  about  8  or  9  years.  At  the 
time  of  coming  there  he  had  but  little  of  this  world's  goods,  but  was 
successful  in  his  business,  and  by  September,  19 10,  he  had  fully  paid 
for  his  office  building  and  fixtures,  had  purchased  and  furnished  a 
home,  a  mortgage  upon  which  was  held  by  a  building  and  loan  asso- 
ciation and  was  partly  paid.  .He  also  had  purchased  and  paid  for  three 


884  Cases  on  Evidence 

or  four  city  lots.  His  income  was  from  $i,8oo  to  $2,000  a  year  from 
his  business.  He  carried  $5,000  fraternal  life  insurance,  $3,000  of 
which  was  in  favor  of  his  daughter  Josephine.  Eight  days  before  his 
disappearance  he  allowed  a  $2,500  accident  insurance  policy  to  lapse. 
Some  bills  he  was  sending  out  were  found  on  his  desk,  and  some  den- 
tal supplies  he  had  ordered  on  the  17th  came  in  on  the  19th.  He  was 
a  man  of  domestic  tastes  and  spent  most  of  his  spare  time  with  his 
family.  His  wife  testifies  that  because  his  business  kept  him  closely 
engaged  he  purchased  a  bicycle  and  it  was  his  custom  to  take  a  ride 
each  morning,  leaving  before  the  family  were  up  and  returning  for 
breakfast.  He  was  fond  of  fishing  and  swimming,  and  was  a  kind 
and  indulgent  husband  and  father.  The  family  spent  part  of  the 
summer  of  1910  in  Ohio,  the  doctor  joining  them,  staying  about  two 
weeks,  and  coming  home  with  them  about  the  beginning  of  August. 
He  was  a  member  of  the  official  board  of  the  Methodist  church,  a 
member  of  the  choir,  and  had  no  bad  habits  of  any  kind.  He  was 
fond  of  the  open  air,  and  while  the  family  were  in  Ohio  he  pitched  a 
tent  in  Riverside  Park,  near  the  Missouri  River,  and  slept  there  during 
their  absence,  and  on  their  return  moved  the  tent  to  his  back  yard  and 
slept  there  with  his  little  boy.  On  Saturday,  September  17,  the  family 
with  some  friends  went  to  Riverside  Park  for  a  moonlight  picnic.  They 
returned  home  a  little  after  9  o'clock.  The  family  soon  retired,  leaving 
Dr.  Ganson  sitting  reading.  About  half  past  2  in  the  morning  Mrs. 
Ganson  was  awakened  by  the  little  boy  crying,  and  found  the  doctor 
was  not  in  the  tent  with  him.  She  testifies  he  had  drunk  two  cupfuls 
of  coflFee  at  the  picnic,  and  he  could  not  sleep  when  he  drank  coffee. 
His  nightgown  was  hanging  on  the  side  of  the  bed  where  he  had  hung 
it.  All  of  his  clothing,  except  a  pair  of  khaki  trousers,  a  shirt  and  a 
pair  of  bicycle  shoes,  were  in  the  places  where  they  were  usually  kept. 
About  6  in  the  morning  the  doctor's  bicycle  was  found  at  Riverside 
Park  on  the  crest  of  the  bluff  overlooking  the  river.  A  stick  was  stuck 
in  the  mud  on  the  bank  of  the  river  and  the  clothing  taken  by  him 
was  hanging  upon  this  stick.  His  bicycle  shoes  and  his  socks  were 
on  the- ground  beside  it.  Tracks  of  a  barefooted  man  led  from  this 
point  to  the  water's  edge,  and  there  were  other  tracks  coming  from  the 
water  and  leading  to  a  drift  or  log  that  was  lying  partly  in  the  water, 
and  which  had  been  used  by  boys  to  jump  into  the  river.  The  bank 
of  the  river  was  muddy,  but  there  were  no  footprints  leading  back  to 
the  solid  ground.  The  sheriff,  who  reached  the  scene  about  7  oclock 
in  the  morning,  with  others  went  up  and  down  the  river  bank  for  a 
distance  of  between  a  half  mile  and  a  mile  to  see  if  they  could  find 


Presumptions  885 

any  fresh  tracks  leading  out  of  the  river,  but  were  unable  to  find  any. 
In  the  afternoon  the  river,  which  was  from  6  to  9  feet  deep  at  that 
point,  was  dragged,  and  afterwards  on  Sunday  and  Monday  dynamite 
was  used  in  the  attempt  to  raise  the  body.  Search  was  also  made  for 
footprints  for  about  a  mile  on  the  other  side  of  the  stream,  but  none 
were  found,  though  the  character  of  the  bank  was  such  that  an  imprint 
would  have  been  left  if  a  man  had  walked  over  it.  The  following 
Tuesday  some  men  who  were  working  at  a  brick-yard  at  a  point  about 
a  mile  below  testify  they  saw  an  object  which  they  believed  to  be  a 
naked  body  coming  down  the  river.  When  asked  as  to  the  color  of  the 
object,  a  witness  answered:  "Why,  he  was  white  and  shiny — ^you  could 
see  hair,  you  know ;  it  looked  like  a  man's  or  woman's  body."  This 
object  was  out  about  150  yards.  Some  of  the  men  went  after  a  boat, 
but  before  they  got  it  launched  and  reached  the  spot  the  object  had 
disappeared.  Another  witness  w^atched  the  body  while  the  men  went 
for  the  boat.  He  says  it  was  rolling  along  on  the  edge  of  a  sand-bar, 
and  sank  before  the  boat  reached  the  spot. 

Notices  were  printed  and  distributed  along  the  river  and  elsewhere. 
Mrs.  Ganson  wrote  to  many  of  his  relatives  and  old  school  friends, 
and  caused  many  inquiries  to  be  made,  but  neither  she  nor  any  one 
else  ever  received  any  communication  from  him  or  from  any  other 
persons  who  saw  him  afterwards. 

No  evidence  was  introduced  by  the  defendant.  This  action  was  be- 
gun about  a  year  after  the  disappearance.  The  principle  governing  this 
case  is  well  expressed,  as  follows,  by  Judge  Sanborn  in  a  case  from 
this  state,  citing  Cox  v.  Ellsworth,  18  Neb.  664,  and  other  cases :  "The 
established  presumption  of  fact  from  the  disappearance  of  an  individual 
under  ordinary  circumstances,  from  whom  his  relatives  and  acquaint- 
ances have  never  afterwards  heard,  is  that  he  continues  to  live  for 
seven  years  after  his  disappearance.  If  this  presumption  was  unaflFected 
by  countervailing  facts,  it  would  continue  in  the  case  at  bar  until  August 
22,  1899;  b^t  this  presumption  of  fact  is  not  conclusive.  It  may  be 
overcome,  not  only  when  the  testimony  of  those  who  saw  the  insured 
die  or  saw  his  body  after  his  death  is  produced,  or  when  he  was  last 
seen  in  a  peril  that  might  probably  cause  his  death,  but  also,  when  all 
the  facts  and  circumstances  of  the  case — the  possible  motives,  if  any, 
of  the  lost  one  to  absent  and  conceal  himself  in  view  of  approaching 
failure,  disgrace,  or  punishment,  his  possible  motives,  if  any  for  re- 
turning to  his  family  and  occupation,  his  attachments  to  the  members 
of  his  family  and  his  friends,  his  interest  and  prospects  in  his  business 
or  occupation,  and  the  extent  of  the  unavailing  search  that  has  been 


886  Cases  on  Evidence 

made  for  him — are  such  that  they  would  take  the  case  out  of  the 
category  of  an  ordinary  disappearance,  and  would  lead  the  unpreju- 
diced minds  of  reasonable  men,  exercising  their  best  judgment,  guided 
by  the  established  rule  that  life  is  presumed  to  continue  seven  years 
after  an  unexplained  disappearance,  to  the  conviction  that  death  had 
intervened  at  an  earlier  date."  Northwestern  Mutual  Life  Ins.  Co. 
v.  Stevens,  71  Fed.  258.  See,  also,  Winter  v.  Supreme  Lodge,  K.  of 
P.,  96  Mo.  App.  I,  loi  Mo.  App.  550. 

While  there  is  a  possibility  that  Dr.  Ganson  may  still  be  alive,  we 
are  of  the  opinion  that  a  consideration  of  his  whole  history,  his  tastes, 
his  habits,  his  occupation  and  his  manner  of  life,  when  taken  in  con- 
nection with  the  facts  that  all  the  clothing  which  he  is  known  to  have 
been  possessed  of  has  been  accounted  for,  that  it  was  not  shown  that  he 
was  in  possession  of  any  money  at  the  time  of  his  disappearance,  that 
his  last  known  appearance  in  life  was  when  he  stood  unclad  upon  the 
bank  of  the  treacherous  Missouri  river,  that  what  was  believed  by  sev- 
eral witnesses  to  be  the  naked  body  of  a  human  being  a  few  days  after- 
wards was  seen  in  the  river  at  a  point  below,  was  sufficient  to  justify 
the  District  Court  in  finding  that  he  died  as  alleged  in  the  petition. 
We  have  been  cited  in  defendant's  brief  to  numerous  instances  of  the 
disappearance  of  persons  who  were  afterward  found  to  be  alive,  but  in 
none  that  have  been  called  to  our  attention  are  the  circumstances  similar 
to  those  in  this  case. 

The  judgment  of  the  District  Court  was  warranted  by  the  evidence, 
and  it  is  therefore 

Affirmed. 


MARQUET  V.  INSURANCE  CO. 
128  Tenn.  213.     (1913) 

Mr.  Justice  Buchanan  delivered  the  opinion  of  the  court. 

This  suit  is  based  upon  an  insurance  contract.  The  breach  relied 
on  is  the  failure  to  pay  $2,000,  the  amount  of  the  policy,  upon  proofs 
of  death  of  the  insured. 

The  defenses  are  two :  First,  that  the  payee  or  beneficiary,  in  the 
policy  sued  on,  at  the  date  of  its  insurance,  had  no  insurable  interest  in 
the  life  of  the  insured,  and  the  contract  sued  on  is  therefore  a  wager- 
ing one  and  unenforceable;  second,  that  the  proofs  do  not  show  the 


Presumptions  687 

death  of  the  insured,  and  therefore  no  breach  is  shown  justifying  a 
recovery. 

There  was  a  decree  below  for  $2,132.50  and  costs,  from  which  the 
insurance  company  appealed,  and  has  here  assigned  errors  based  on 
the  defense  above. 

At  the  time  of  the  issuance  of  the  policy  sued  on,  complainant 
was  the  lawful  wife  of  Gus  Marquet,  and  his  was  the  life 
insured.  The  policy  was  issued  April  7,  1893,  and  soon  thereafter  it 
was  delivered  to  complainant,  who  paid  all  premiums  which  became 
due  upon  it  after  its  issuance.  Three  years  and  over  after  its  issuance 
on,  to  wit,  April  21,  1898,  at  the  suit  of  complainant  she  was  granted 
absolute  divorce  from  Gus  Marquet  by  the  Chancery  Court  of  Hamil- 
ton County  upon  the  ground  of  habitual  drunkenness  by  Gus  Marquet 
after  his  marriage  to  her,  failure  by  him  to  provide  for  her  and  her 
children  by  him,  etc.  There  followed  an  entire  estrangement  between 
Gus  Marquet  and  complainant  and  her  children.  The  latter  were  two 
sons,  respectively,  about  twenty-one  and  twenty  years  of  age,  and  a 
daughter  about  eighteen  years  old  at  the  time  of  the  divorce.  The 
children  were  in  sympathy  with  the  mother  in  that  suit. 

Prior  to  the  divorce,  for  many  years,  the  home  of  the  family  and 
of  Gus  Marquet  had  been  in  Chattanooga,  Tenn,,  but  soon  after  the 
divorce,  or  during  the  years  1898  or  1899,  he  left  Chattanooga,  and 
took  up  his  residence  at  Oakdale,  Tenn.,  where  he  remained  until 
about  the  year  1900,  when  he  left  Oa,kdale  for  a  trip  to  New  Orleans, 
and  has  not,  as  complainant  insists,  been  heard  from  directly  since  that 
time,  except  through  a  letter  supposed  to  have  been  from  him,  ad- 
dressed to  one  of  his  nephews  residing  in  Chattanooga  in  the  year 
1904.  By  one  rumor  he  is  said  to  have  been  seen  in  Detroit,  Mich., 
by  another  in  Memphis,  Tenn.,  but  the  persons  said  to  have  seen  him 
are  not  examined  as  witnesses ;  nor  do  the  dates  appear  when  they 
claim  to  have  seen  him. 

The  policy  in  suit,  by  its  terms,  was  to  live  for  a  period  of  ten  years 
from  its  date,  in  consideration  of  a  fixed  semi-annual  premitttti  to  be 
paid  the  company.  But  it  provided  that  at  its  expiration  it  might  be 
renewed  by  the  issuance  of  a  new  policy. 

The  second  assignment  of  error,  based  on  the  second  defense  above, 
is  that  the  court  was  in  error  in  decreeing  complainant  a  recovery  of 
the  amount  of  the  policy  sued  on,  because  the  evidence  in  this  case 
does  not  justify  the  presumption  in  law  that  Gus  Marquet  was  dead 
when  this  suit  began. 

Positive  proof  is  always  required  where,  from  the  nature  of  the 


888  Cases  on  Evidence 

case,  it  appears  it  might  possibly  have  been  had.  But  next  to  positive 
proof,  circumstantial  evidence,  or  the  doctrine  of  presumption  must 
take  place,  for  where  the  fact  itself  cannot  be  demonstratively  evinced, 
that  which  comes  nearest  to  the  proof  of  the  fact  is  the  proof  of  such 
circumstances  which  either  necessarily  or  usually  attend  such  facts, 
and  these  are  called  presumptions,  which  are  only  to  be  relied  on  until 
the  contrary  be  actually  proved,  Stahitur  praesumptio  donee  probetur 
in  contraium.  Violent  presumption  is  many  times  equal  to  full  proof, 
for  there  those  circumstances  appear  which  necessarily  attend  the  fact." 
Blackstone,  vol.  2,  book  3,  sec.  341. 

Presumption  is  no  magic  or  short-cut  way  by  which  proof  of  the 
essential  and  determinative  fact  may  be  dispensed  with,  for  we  see  from 
the  above  quotation  that  "positive  proof  is  always  required,  where, 
frcwn  the  nature  of  the  case,  it  appears  that  it  might  possibly  have  been 
had."  And,  evidently,  by  the  next  sentence  in  the  quotation,  it  is  meant 
to  be  said  that  a  presumption  is  only  a  name  for  a  conclusion  reached 
by  means  of  the  weight  of  proven  circumstances ;  and,  which  attend 
must  be  in  evidence.  Proof  of  the  essential  fact  must  be  had,  either 
direct  or  positive  by  witnesses  who  know  the  fact,  or  circumstantial 
by  witnesses  who  know  and  testify  to  facts  which  tend  to  establish  or 
prove  the  essential  fact;  and  only  when  the  circumstances  are,  in  the 
judgment  of  the  court  or  jury,  such  as  usually  or  necessarily  attend 
the  essential  fact  are  they  sufficient  in  law  to  warrant  a  verdict,  judg- 
ment, or  decree  establishing  as  a  fact  that  which  has  not  been  proved 
by  direct  or  positive  evidence.  This  principle  was  applied  by  us  in 
Dunlap  V.  State,  126  Tenn.  415,  150  S.  W.  86. 

The  essential  fact  in  the  present  case  is  the  death  of  Gus  Marquet. 
Upon  satisfactory  proof  of  his  death,  the  contract  sued  on  binds  the 
insurance  company  to  pay.  There  is  no  direct  or  positive  proof  of 
his  death,  no  witness  who  testifies  that  he  saw  him  die,  or  that  he  saw 
his  body  after  death.  It  is  then  clearly  a  case  where  proof  of  the 
essential  fact  must  be  made  by  circumstantial  evidence. 

The  main  insistence  for  the  complainant  is  that,  under  the  proof  of- 
fered by  her  in  this  record,  a  presurnption  that  Gus  Marquet  is  dead 
arises. 

"The  inference  of  death  to  be  derived  from  unexplained  absence  is, 
at  most,  only  a  presumption,  and  it  cannot  arise  unless  the  absence 
remains  unexplained  after  diligent  inquiry  is  made  of  the  persons  and 
at  the  places  where  tidings  of  the  absentee,  if  living,  would  most 
probably  be  had."  Renard  v.  Bennett,  76  Kan.  854,  93  Pac.  263,  14 
Ann.  Cas.  240,  and  authorities  cited. 


Presumptions  889 

"According  to  the  weight  of  modern  authority,  diligent  inriuiry 
among  friends  and  relatives,  and  any  others  who  would  probably  hear 
of  an  absentee,  is  necessary  to  raise  a  presumption  of  the  latter's  death, 
after  an  unexplained  absence -of  seven  years  from  home  or  place  of 
residence."  Modern  Woodmen  of  America  v.  Gerdom,  72  Kan.  391, 
82  Pac.  1 100,  2  L.  R.  A.  (N.  S.)   178,  133  Am.  St.  Rep.  1095. 

"Mere  absence  is  not  sufficient  to  raise  the  presumption.  *  *  * 
Evidence  of  absence  from  his  original  place  of  residence  will  not  raise 
the  presumption  of  death,  where  it  appears  that  he  has  moved  to  an- 
other place."  Hansen  v.  Owens,  132  Ga.  652,  64  S.  E.  800;  Went- 
worth  V.  Wentworth,  71  Me.  74. 

The  complainant  calls  as  witneses  none  of  the  collateral  relatives 
of  Gus  Marquet  who  resided  in  Chattanooga.  Her  sole  evidence  to 
establish  the  presumption  of  death  in  this  case  is  made  by  herself  and 
her  son,  W.  L.  Marquet,  who,  as  shown  by  the  divorce  bill,  had  re- 
fused to  reside  under  the  same  roof  with  his  father  before  the  bill 
was  filed. 

Without  going  into  the  evidence  touching  inquiries  made  by  the 
complainant  in  further  detail,  it  suffices  to  say  that,  in  our  opinion,  the 
evidence  here  does  not  warrant  a  finding  that  Gus  Marquet  was  dead 
when  this  bill  was  filed.  Complainant  testified  that  he  was  up  to  the 
time  she  last  saw  him,  always  in  good  health,  and  that  she  had  never 
known  him  to  be  sick  as  much  as  one  day. 

Wherefore  the  decree  appealed  from  must  be  reversed.  We  think 
that  we  can  see  from  this  record  that  justice  will  in  all  probability  be 
done  by  remanding  this  cause,  with  leave  to  each  side  to  take  further 
proof,  and  it  is  so  ordered.  Bank  v.  White,  114  Tenn.  73,  84  S.  W. 
697. 


NEWELL  V.  NICHOLS. 
75  N.  Y.  78.     (1878) 


Church,  Ch.  J.  The  able  and  elaborate  opinion  delivered  by  Judge 
Van  Vorst,  who  tried  the  case  at  Special  Term,  renders  it  unnecessary 
to  elaborate  the  question  involved.  I  have  examined  with  care  all  the 
points  presented,  and  I  concur  fully  with  the  opinion  upon  all  of  them, 
and  with  the  views  expressed  therein. 

The  principal  points  decided  are:     ist.     That  the  appellants  who 


890  Cases  on  Evidence 

claim  through  a  survivorship  must  prove  the  survivorship.  2d.  That 
there  is  no  presumption  in  law  of  survivorship  in  the  case  of  persons 
who  perish  by  a  common  disaster,  as  in  this  case,  by  shipwreck,  with- 
out other  evidence  tending  to  prove  the  fact,  and  hence  that  the  party 
upon  whom  the  onus  lies  fails  to  establish  it. 

I  should  be  content  to  adopt  the  opinion  without  further  remark 
but  for  considerations  which  have  suggested  themselves  to  some  of  my 
brethren  in  respect  to  the  question  of  survivorship,  as  applicable  to  the 
position  of  the  appellants,  which  will  be  briefly  noticed.  The  sugges- 
tion, as  I  understand  it,  is,  that  conceding  the  burden  of  proving  survi- 
vorship to  be  upon  the  appellants,  and  that  in  this  case  there  is  no 
presumption  that  either  particular  child  survived,  yet  as  the  law  will 
not  presume  that  they  died  at  the  same  time,  a  presumption  may  be 
indulged  that  there  was  a  survivor,  and  that  it  makes  no  difference 
which  child  survived  as  he  would  inherit  the  share  of  the  other,  and 
create  a  new  line  of  descent  for  that  share  which  would  embrace  the 
appellants.  This  of  course  would  affect  but  one  of  the  children's 
share,  or  one-quarter  of  the  estate.  The  suggestion  although  appar- 
ently plausible  in  statement,  cannot  be  sustained. 

In  the  first  place  assuming  such  a  presumption,  it  may  be  observed 
that  the  appellants  are  required  to  prove  their  right  or  title.  Can  a 
party  successfully  claim  that  as  he  is  entitled  to  one  thing  or  another, 
and  as  they  are  alike  he  will  take  either?  It  is  an  accidental  circum- 
stance that  the  shares  of  these  children  were  alike  in  amount  or  kind. 
Suppose  they  had  been  unequal  in  amount,  or  that  one  had  been  in 
land,  and  the  other  in  money,  could  the  appellants  have  claimed  either? 
Clearly  not.  As  to  the  daughter's  share  there  was  a  failure  to  prove 
a  title  because  it  does  not  appear  that  the  son  survived  the  daughter, 
and  the  same  is  true  of  the  share  of  the  son.  The  appellants  hold  the 
affirmative,  and  must  establish  their  title  to  some  specific  share  or  in- 
terest, which  they  fail  to  do  by  an  alternative  claim.  As  they  cannot 
claim  either  have  they  not  failed  as  to  both?  A  somewhat  similar 
point,  though  upon  a  different  ground  was  presented  in  Wing  v.  An- 
gram  (8  H.  L.  183).  The  estate  was  limited  to  one  Wing  upon  certain 
conditions  in  the  respective  wills  of  husband  and  wife,  who  were  lost 
at  sea.  The  husband  gave  everything  to  the  wife,  and  adds:  "And 
in  case  my  wife  shall  die  in  my  lifetime  *  *  *  then  I  give  all  my 
estate  to  William  Wing."  And  the  wife  gave  everything  to  the  hus- 
band, and  stated,  "and  in  case  my  husband  should  die  in  my  lifetime, 
then  I  devise,  bequeath,  and  appoint  the  said  property  to  the  use  of 
William  Wing."    Wing  claimed  under  both  wills,  but  the  court  denied 


Prjssumptions  891 

his  claim  under  either,  because  he  could  not  prove  that  either  husband 
or  wife  survived.  It  is  true  in  that  case  that  the  wills  created  a  condi- 
tion precedent,  but  as  the  condition  was  the  same  in  each  will  the  ulti- 
mate legatee  claimed  under  both  on  the  ground  that  it  was  immaterial 
which  survived.  Lord  Chelmsford,  in  answering  this  point  said:  "If 
different  persons  had  been  entitled  under  the  two  wills,  each  must  have 
established  his  claim  solely  by  the  will  in  his  favor,  independently  of 
the  other,  and  no  difference  can  be  made  in  the  rules  of  evidence,  be- 
cause the  appellant  accidentally  happened  to  be  the  ultimate  legatee 
in  each  will."  The  claim  was  not  predicated  upon  the  presumption 
of  a  survivor  as  here,  but  upon  a  unity  of  rights  and  interests,  as 
legatee  under  both  wills. 

I  do  not  think  an  alternative  claim  can  be  sustained,  conceding  the 
presumption  of  survivorship.  However  this  may  be  a  decisive  answer 
to  the  suggestion  is,  that  there  is  no  legal  presumption  which  courts 
are  authorized  to  act  upon  that  there  was  a  survivor  any  more  than 
there  is  any  legal  particular  survivor.  It  is  not  claimed  that  there  is 
any  legal  presumption  that  the  children  died  at  the  same  time.  Indeed 
it  may  be  conceded  that  it  is  unlikely  that  they  ceased  to  breathe  at 
precisely  the  same  instant,  and  as  a  physical  fact  it  may  perhaps  be 
inferred  that  they  did  not.  But  this  does  not  come  up  to  the  standard 
of  proof.  The  rule  is  that  the  law  will  indulge  in  no  presumption  on 
the  subject.  It  will  not  raise  a  presumption  by  balancing  probabilities, 
either  that  there  was  a  survivor,  or  who  it  was.  In  this  respect  the 
common  law  differs  from  the  civil  law.  Under  the  latter,  certain  rules 
prevail  in  respect  to  age,  sex,  and  physical  condition,  by  which  survivor- 
ship may  be  determined;  but  nothing  can  be  more  uncertain,  or  un- 
satisfactory than  this  conjectural  mode  of  arriving  at  a  fact,  which 
from  its  nature  must  remain  uncertain,  and  often  upon  existence  of 
which  the  title  to  large  amounts  of  property  depend.  In  the  language 
of  the  Lord  Chancellor,  in  Wing  v.  Underwood,  (4  DeGex,  M.  &•  G. 
633),  "We  may  guess,  or  imagine,  or  fancy,  but  the  law  of  England 
requires  evidence."  There  are  cases  where  a  strong  probability  in 
theory  at  least  would  arise,  that  one  person  survived  another,  and  per- 
haps as  strong  as  that  that  there  was  a  survivor,  and  yet  the  common 
law  wisely  refrains  from  acting  upon  it  in  either  case.  It  is  regarded 
as  a  question  of  fact  to  be  proved,  and  evidence  merely  that  two  per- 
sons perished  by  such  a  disaster,  is  not  deemed  sufficient.  If  there 
are  other  circumstances  shown,  tending  to  prove  survivorship,  courts 
will  then  look  at  the  whole  case  for  the  purpose  of  determining  the 
question,  but  if  only  the  fact  of  death  by  a  common  disaster  appears 


892  Cases  on  Evidence 

they  will  not  undertake  to  solve  it  on  account  of  the  nature  of  the 
question,  and  its  inherent  uncertainty.  It  is  not  impossible  for  two 
persons  to  die  at  the  same  time,  and  when  exposed  to  the  same  peril 
under  like  circumstances,  it  is  not  a  question  of  probability  very  un- 
likely to  happen.  At  most  the  difference  can  only  be  a  few  brief  sec- 
onds. The  scene  passes  at  once  beyond  the  vision  of  human  penetra- 
tion, and  it  is  as  unbecoming  as  it  is  idle  for  judicial  tribunals  to 
speculate  or  guess  whether  during  the  momentary  life  struggle  one  or 
the  other  may  not  have  ceased  to  gasp  first,  especially  when  the  trans- 
mission of  title  to  property  depends  upon  it,  and  hence  in  the  absence 
of  other  evidence  the  fact  is  assumed  to  be  unascertainable,  and  prop- 
erty rights  are  disposed  of  as  if  death  occurred  at  the  same  time.  This 
is  done  not  because  the  fact  is  proved,  or  that  there  is  any  presumption 
to  that  effect,  but  because  there  is  no  evidence,  and  no  presumption 
to  the  contrary.  The  authorities  are  uniform  upon  this  doctrine,  but 
the  expressions  of  some  of  the  judges  in  announcing  it  are  liable  to 
be  misunderstood  as  indicating  a  presumption  of  simultaneous  death 
which  is  not  the  rule.  For  instance.  Sir  WiUiam  Wynne  said:  "I 
always  thought  it  the  most  natural  presumption  that  all  died  together, 
and  that  none  could  transmit  rights  of  property  to  another."  (Rex. 
V.  Hease,  2  Salk.  593;  2  Phill.  296,  note  c. ;  5  B.  &  Ad.  91,  92.) 

Sir  John  Nicoll  said :  "I  assume  that  both  perished  in  the  same 
moment."  (Taylor  v.  Diplock,  2  Phill.  261.)  In  the  Matter  of  Sel- 
wyn  (3  Hagg.  Ec.  R.  748),  the  court  said:  "But  in  the  absence  of 
clear  evidence,  it  has  generally  been  taken  that  both  died  in  the  same 
moment."  Sir  Herbert  Jenner  said:  "The  parties  must  be  presumed 
to  have  died  at  the  same  time."     (i  Curties,  705.) 

These  expressions  only  mean  that  as  the  fact  is  incapable  of  proof, 
the  one  upon  whom  the  onus  lies  fails,  and  the  persons  thus  perishing 
must  be  demed  to  have  died  at  the  same  time,  for  the  purpose  of  their 
property.  The  Lord  Chancellor  in  Wing  v.  Underwood  (supra), 
recognized  the  distinction,  and  explained  the  meaning  of  the  rule.  In 
commenting  upon  a  similar  expression  of  the  Master  of  the  Rolls  to  the 
effect  that  he  must  assume  that  Mr.  and  Mrs.  Underwood  both  died 
together,  the  chancellor  said:  "From  personal  communication  with 
his  honor,  I  know  that  he  is  not  aware  that  he  ever  used  such  an  ex- 
pression, and  all  he  ever  meant  to  say  was  that  the  property  must  be 
distributed  just  as  it  would  have  been  if  they  had  both  died  at  the 
same  moment."  And  Mr.  Best  in  his  work  on  Presumptions,  after 
laying  down  the  general  rule,  states,  that  it  is  not  correct  to  infer  from 
this  that  the  law  presumes  both  to  have  perished  at  the  same  moment, 


Burden  oi^  Proof  893 

and  adds :  "The  practical  consequence  is  however  nearly  the  same, 
because  if  it  cannot  be  shown  which  died  first,  the  fact  will  be  treated 
by  the  tribunal  as  a  thing  unascertainable,  so  that  for  all  that  appears 
to  the  contrary,  both  individuals  may  have  died  at  the  same  moment." 
All  the  common  law  authorities  are  substantially  the  same  way,  and 
the  rule,  which  I  think  is  wise  and  safe,  should  be  regarded  as  settled. 
Its  propriety  is  not  weakened  by  the  circumstance  that  its  first  applica- 
tion in  this  court  prevents  this  estate  from  being  turned  into  channels 
never  contemplated  or  intended  by  the  testatrix. 

Judgment  affirmed. 


BURDEN  OF  PROOF.l 

GIBSON,  Admr.  v.  SWOFFORD. 
122  Mo.  App.  126.     (1906) 

Ellison,  J.  The  plaintiflf  is  public  administrator  of  the  estate  of 
W.  C.  SwofTord,  deceased,  and  the  defendant  is  the  father  of  the  de- 
ceased. The  son  was  married  to  Delia  E.  Swofford  and  she  was  ap- 
pointed administratrix  of  his  estate  and,  as  such,  brought  this  action 
in  replevin  for  a  lot  of  personal  property.  She  married  and  then  the 
present  plaintiff  was  substituted  in  her  stead  as  plaintiff.  The  jury 
found  for  the  plaintiff  and  assessed  the  value  of  the  property  at  the 
time  of  the  trial  at  $100  and  likewise  assessed  the  damages  at  $10. 

There  was  no  substantial  dispute  as  to  defendant's  having  the  prop- 
erty and  that  originally  it  belonged  to  his  son.  He,  however,  claimed 
to  have  purchased  a  part  of  it  of  the  son  prior  to  his  death.  Ordi- 
narily, the  burden  of  proof  is  on  the  plaintiff,  but  on  issue  as  here 
presented  it  devolved  upon  defendant  to  show  that  he  bought  the 
property  of  his  son.    Instructions  on  this  head  were  proper. 

Judgment  affirmed. 


iHughes  on  Evidence,  p.  15. 


894  Cases  on  Evidence 

STATE  ex  rel.  LEONARD  v.  ROSENTHAL. 
123  Wis.  442.     (1905) 

This  is  an  action  of  quo  warranto  brought  by  the  relator  to  remove 
from  the  office  of  assessor  of  the  village  of  West  AUis  the  respondent, 
August  Rosenthal. 

WiNSLOW,  J.  The  trial  court  charged  the  jury  upon  the  subject  of 
the  burden  of  proof  as  follows: 

"The  burden  of  proof  in  this  case  as  to  all  the  material  facts  neces- 
sary to  sustain  the  plaintiff's  claim  is  upon  the  plaintiff.  He  must 
show  or  prove  by  competent  evidence,  so  as  to  satisfy  your  minds  by 
a  preponderance  of  all  the  evidence,  that  such  facts  exist  as  alleged 
by  him — that  is,  the  plaintiff  contends  you  should  answer  them,  you 
must  be  satisfied  by  a  preponderance  of  all  the  evidence  that  his  con- 
tention is  correct. 

"The  defendant  has  alleged,  among  other  things,  that  he  received 
the  greatest  number  of  votes  cast  by  the  duly  qualified  electors  of  said 
village  for  the  office  of  assessor.  The  burden  of  proof  in  this  action 
as  to  all  the  material  facts  necessary  to  sustain  the  defendant's  allega- 
tions is  upon  the  defendant.  He  must  show  or  prove  by  competent 
evidence,  so  as  to  satisfy  your  minds  by  a  preponderance  of  all  the 
evidence,  that  such  facts  exist  as  alleged  by  him —  that  is,  the  defend- 
ant has  the  burden  of  proof  as  to  such  matters,  as  he  alleges — and,  in 
order  for  you  to  answer  the  questions  which  will  be  submitted  to  you 
as  the  defendant  contends  you  should  answer  them,  you  must  be  satis- 
fied by  a  preponderance  of  all  the  evidence  that  his  contention  is  cor- 
rect." 

"I  further  charge  you,  gentleman  of  the  jury,  it  is  conceded  that 
the  defendant  received  a  certificate  of  election  as  assessor,  issued  by 
the  proper  officers,  in  proper  legal  form ;  and  the  jury  is  instructed 
that  said  certificate  is  prima  facie  evidence  of  the  defendant's  right 
and  title  to  said  office,  and  his  said  right  and  title  to  said  office  can 
only  be  overcome  by  some  positive  testimony  that  illegal  votes  suffi- 
cient to  change  the  result  of  said  election  were  cast  and  counted  for 
the  defendant.  But  when  it  shows  by  satisfactory  evidence  that  the 
certificate  does  not  state  the  truth  as  to  the  result  of  such  election,  the 
presumption  in  favor  of  the  incumbent,  based  upon  such  certificate, 
is  rebutted,  and  then  the  burden  is  thrown  upon  the  defendant  to  es- 
tablish his  right  to  the  office  by  other  competent  evidence,  to  show 


Burden  oi^  Proof  ^  895 

that  he  has  received  an  equal  number  or  a  greater  number  of  legal 
votes  than  the  plaintiff." 

There  is  certainly  confusion  here,  rather  than  helpfulness.  The 
first  portion  of  these  instructions  says,  in  effect,  that  the  burden  of 
proof  is  upon  both  parties  at  the  same  time.  It  was  proven  at  the 
inception  of  the  case  that  the  defendant  was  declared  elected  by  the 
board  of  canvassers  of  the  election,  and  was  holding  the  office  under 
such  determination.  This  created  a  presumption  in  his  favor  that  he 
had  received  the  number  of  votes  stated  in  the  certificate,  and  cast 
upon  the  relator  the  burden  of  .showing  the  certificate  was  false,  thus 
rebutting  the  presumption.  When  this  has  been  done  by  competent 
evidence,  it  then  devolves  upon  the  defendant  to  establish  his  right  (i. 
e.,  the  fact  that  he  received  the  greater  number  of  votes)  by  other 
evidence,  in  order  to  prevent  a  judgment  of  ouster.  State  ex  rel. 
Swenson  v.  Norton,  46  Wis.  332,  i  N.  W.  22.  These  rules  should 
have  been  given  to  the  jury. 

Reversed. 


DORRELL  v.  SPARKS. 
142  Mo.  App.  460.     (1910) 


Gray,  J.  November  17,  1908  the  plaintiff  filed  in  the  office  of  the 
circuit  clerk  of  Greene  County,  Missouri,  his  petition  in  this  cause, 
to  which  the  defendant  in  due  time  answered.  On  the  15th  day  of 
October,  1909,  the  cause  was  tried  to 'a  jury  and  a  verdict  in  favor 
of  the  plaintiff,  signed  by  nine  of  the  jurors,  returned.  Judgment  was 
entered  upon  this  verdict,  and  the  plaintiff,  after  an  unsuccessful  effort 
to  obtain  a  new  trial,  appealed  his  cause  to  this  court. 

The  burden  of  proof  means  the  burden  of  establishing  the  case,  and 
remains  unchangeable  throughout  the  entire  case  exactly  where  the 
pleadings  originally  placed  it ;  that  is,  on  him  alone  who  has  the  affirm- 
ative, though  the  burden  of  the  evidence  may,  during  the  trial,  be 
shifted  from  scale  to  scale.  (McCartney  v.  Ins.  Co.,  45  Mo.  App. 
373;  Feurt  V.  Ambrose,  34  Mo.  App.  360.) 

In  this  case  the  petition  alleged  that  the  notes  were  the  property 
of  the  estate  of  H.  M.  Simcox.    The  defendant  admitted  all  the  formal 


896  Cases  on  Evidence 

parts  of  the  petition  and  admitted  that  H.  M.  Simcox  at  one  time  was 
the  owner  of  the  notes,  but  that  at  a  certain  time  he  gave  the  notes  to 
his  wife,  and  deUvered  the  possession  of  the  same  to  her.  Under  this 
answer,  there  was  but  one  disputed  fact,  and  that  was :  Did  the  hus- 
band give  the  notes  to  his  wife?  If  he  did  not,  the  plaintiff  was  en- 
titled to  recover ;  and  if  he  did,  he  was  not. 

There  being  but  one  issue  in  the  case,  as  we  have  just  stated,  and 
this  issue  being  sharply  drawn,  the  burden  of  proof  being  upon  the 
defendant,  his  counsel  was  entitled  to  open  and  close  the  argument 
to  the  jury.  (Grant  Quarry  Co.  v.  Lyons  Const.  Co.,  72  Mo.  App. 
531;  Absher  v.  Franklin,  121  Mo.  App.  29,  97  S.  W.  1002.) 

Counsel  for  the  respondent  claims  that  the  right  to  award  the  open- 
ing and  closing  argument  is  within  the  discretion  of  the  court,  and  not 
grounds  for  reversal  of  the  judgment.  This  is  the  general  rule  with  the 
addition  that  the  court  will  not  reverse  the  judgment  unless  it  is  ap- 
parent that  such  refusal  has  produced  a  wrong  to  the  party.  (Reichard 
V.  Ins.  Co.,  31  Mo.  1.  c.  520.) 

The  agreed  statement  of  facts  herein  admit  that  both  the  plaintiff 
and  the  defendant  introduced  testimony  tending  to  prove  the  respec- 
tive issues.  The  verdict  of  the  jury  was  not  unanimous,  but  the  plain- 
tiff only  succeeded  in  getting  just  sufficient  members  to  return  a  ver- 
dict. A  practicing  lawyer  of  any  experience  recognizes  the  great  value 
of  the  close  case.  And  in  a  case  like  this  one,  where  the  court  has 
told  the  jury  that  the  burden  of  proving  the  only  contested  issue  in 
the  case  is  upon  the  defendant,  and  then  has  awarded  the  closing  ar- 
gument to  the  plaintiff's  counsel,  and  a  verdict  is  secured  by  the  plain- 
tiff by  only  nine  of  the  jurors  concurring  therein,  it  seems  that  the 
burden  of  showing  that  defendant  was  not  injured  by  the  action  of  the 
court  in  refusing  him  permission  to  close  the  argument,  should  be  upon 
the  plaintiff. 

The  premises  being  considered,  we  are  of  the  opinion  that  the  court, 
in  refusing  defendant's  counsel  the  right  to  open  and  close  the  argu- 
ment, committed  substantial  error,  against  the  appellant,  and  for  which 
he  is  entitled  to  have  a  new  trial,  and  accordingly  the  judgment  will 
be  reversed  and  the  cause  remanded.    All  concur. 


Burden  of  Proof  897 

SCOTT  V.  WOOD. 
81  Col.  398.     (1889) 

HaynB,  C.  This  action  was  to  recover  under  a  contract  between 
the  plaintiff  and  the  firm  of  Hobart,  Wood  &  Co.  for  services  as  sales- 
man. Pending  the  action  Hobart  died,  and  the  case  was  continued 
against  Wood  as  surviving  partner.  The  plaintiff  had  a  verdict,  and 
the  defendant  Wood  appeals  from  the  judgment,  and  from  an  order 
denying  a  new  trial. 

The  case  turned  upon  the  question  whether,  during  a  portion  of  the 
period  in  which  the  plaintiff  rendered  services  his  salary  was  $200  or 
$250  per  month.  Upon  this  question  the  evidence  was  confliction. 
The  defendant  testified  that  the  salary  had  been  fixed  at  $200  a  month 
in  the  beginning  of  1870,  and  the  plaintiff  testified  that  it  had  not. 
The  court  instructed  the  jury  in  relation  to  the  matter  as  follows : 
"The  jury  are  instructed  that  the  defendants  admit  employing  the 
plaintiff  on  July  3,  1869,  at  the  rate  of  $250  per  month,  and  that  he 
worked  for  them  continually  until  the  first  day  of  April,  1885 ;  and  that 
the  burden  of  proof  is  upon  the  defendants  to  show  that  plaintiff's 
compensation  was  changed ;  that  unless  the  defendants  established  by 
a  preponderance  of  testimony  that  plaintiff,  in  1870,  or  at  some  other 
time,  agreed  for  the  defendants  during  the  years  1870  and  1871  at  the 
monthly  compensation  of  $200,  then  they  must  find  for  the  plaintiff." 
This  was  excepted  to,  and  is  specified  as  error. 

We  think  that  the  court  erred  in  telling  the  jury  that  the  defendant 
was  required  to  have  a  preponderance  of  testimony  upon  the  question 
mentioned. 

The  term  "burden  of  proof"  is  used  in  diffei-ent  senses.  Sometimes 
it  is  used  to  signify  the  burden  of  making  or  meeting  a  prima  facie 
case,  and  sometimes  the  burden  of  producing  a  preponderance  of 
evidence.  These  burdens  are  often  on  the  same  party.  But  this  is  not 
necessary  or  always  the  case.  And  it  is  by  no  means  safe  to  infer  that 
because  a  party  has  the  burden  of  meeting  a  prima  facie  case,  there- 
fore he  must  have  a  preponderance  of  evidence.  It  may  be  sufficient 
for  him  to  produce  just  enough  evidence  to  counterbalance  the  evi- 
dence adduced  against  him.  This  is  illustrated  by  a  very  common  case. 
Suppose  that  upon  an  issue  as  to  the  performance  of  a  contract  sued 
upon  the  plaintiff  should  testify  to  facts  showing  non-performance. 
In  such  case,  if  the  defendant  prod^uced  no  evidence  the  plaintiff  must 
prevail.    This  is  often  expressed  by  saying  that  the  burden  has  shifted 


898  Cases  on  Evidence 

to  the  defendant.  And  so  it  has  in  one  sense.  But  suppose  that  the 
defendant  should  take  the  stand  and  deny  the  truth  of  the  facts 
testified  to  by  the  plaintiff — oath  being  opposed  against  oath.  Would 
it  be  correct  to  say  that  the  defendant  must  have  a  preponderance  of 
evidence?  It  most  certainly  would  not.  And  this,  though  the  "bur- 
den of  proof"  had  been  transferred  to  him.  Nor  would  it  be  correct 
to  say  that  the  burden  had  "shifted  back"  to  the  plaintiff,  if  the  burden 
of  producing  a  preponderance  of  evidence  was  meant.  For  that  never 
was  on  the  defendant.  The  two  burdens  are  distinct  things.  One  may 
shift  back  and  forth  with  the  ebb  and  flow  of  the  testimony.  The 
other  remains  with  the  party  upon  whom  it  is  cast  by  the  pleadings — 
that  is  to  say,  with  the  party  who  has  the  affirmative  of  the  issue. 

In  the  present  case  we  think  that  the  learned  judge  of  the  trial 
court  fell  into  error  from  overlooking  the  distinction  above  pointed  out. 
Why  was  the  defendant  required  to  have  a  preponderance  of  evidence? 
Did  he  have  the  affirmative  of  the  issue  ?    We  think  not. 

We  advise  that  the  judgment  and  order  appealed  from  be  reversed, 
and  the  case  remanded  for  a  new  trial. 


BUSWELL  V.  FULLER. 
8p  Me.  600.    (i8g7) 


Peters,  C.  J.  This  is  an  action  of  replevin  for  a  horse  that  was 
distrained  by  a  town  collector  for  a  tax  against  the  plaintiff.  The 
horse,  having  been  kept  four  days  by  the  collector,  while  about  to  be 
sold  by  him  at  auction  was  replevied  by  the  owner  upon  the  ground 
that  the  horse  had  not  been  properly  cared  for  during  the  four  days ; 
the  owner  alleging  that  the  horse  was  sound  when  distrained,  and  had 
been  injured  during  the  time  of  his  detention  by  the  negligence  of  the 
collector.  The  own^r  claims  the  fault  of  the  horse's  hip  got  out  of 
joint  by  some  accident  caused  by  the  fault  of  the  collector.  Upon 
this  issue  of  negligence  the  case  was  tried  and  a  verdict  rendered  for 
the  defendant. 

The  only  exception,  out  of  several  taken,  which  is  now  relied  on  is 
that  relating  to  the  burden  of  proof.  The  plaintiff  asked  the  court 
to  instruct  the  jury,  "that  the  defendant  was  bound  to  produce  the 
distress  at  the  time  and  place  of  sale  in  as  good  order  and  condition 
as  when  he  distrained  it,  and  that  if  the  distress  was  injured  while  in 


Burde;n  of  Proof  899 

his  custody,  so  to  render  it  of  less  value,  the  defendant  became  a 
wrongdoer  and  the  burden  was  upon  the  defendant  to  show  that  he 
was  not  at  fault," 

The  presiding  justice  ruled  that  the  burden  of  proof  was  upon  the 
plaintiff  to  establish  the  fact,  by  preponderance  of  testimony,  that  the 
horse  was  injured  because  the  defendant  did  not  exercise  the  due  and 
proper  care  for  the  distraint  while  in  his  custody. 

Generally  the  burden  of  proof  upon  any  affirmative  proposition 
necessary  to  be  established  as  the  foundation  of  a  suit  does  not  shift 
from  plaintiff  to  defendant,  while  the  burden  of  evidence,  or  the  bur- 
den of  explanation,  may  shift  from  one  side  to  the  other  according  to 
the  testimony.  There  is  a  manifest  distinction  between  the  burden  of 
proof  and  the  burden  of  evidence.  How  far  the  burden  of  evidence 
may  bear  upon  a  party  to  a  litigation  is  usually  more  for  the  jury  to 
determine  as  a  matter  of  fact  than  for  the  ruling  of  the  court  as  matter 
of  law. 

Generally,  where  a  plaintiff,  as  his  cause  of  action,  alleges  negligence 
against  a  defendant,  the  burden  of  proof  is  upon  the  plaintiff  through- 
out the  trial,  even  though  in  instances  the  burden  of  evidence  may 
change.  And  very  many  English  and  American  cases  hold  the  doctrine 
that  the  rule,  requiring  that  a  plaintiff  who  alleges  negligence  must 
affirmatively  prove  it,  applies  in  any  case  of  bailment  where  the  bailor 
sues  the  bailee  for  not  returning  the  articles  bailed  in  suitable  condition, 
or  does  not  even  return  them  at  all,  at  the  time  when  the  bailee  was  to 
turn  them  over,  and  that  an  omission  so  to  do  does  not  of  itself  establish 
the  bailee's  negligence  or  default.  But  this  doctrine  is  stoutly  opposed 
by  other  strong  and  leading  authorities.  Judge  Story  in  his  book  on 
bailments  espouses  the  doctrine,  and  Dr.  Wharton  in  several  of  his 
treatises  bluntly  opposes  it.  The  idea  on  which  the  doctrine  is  grounded 
is  that  negligence  is  not  to  be  assumed  or  presumed,  but  must  be 
*  ,  proved,  and  in  the  case  of  an  officer  the  theory  is  made  stronger,  per- 
haps, because  it  is  aided  by  the  presumption  that  an  officer,  who  has 
no  motive  to  commit  wrong,  is  presumed  to  act  correctly. 

And  still  there  is  really  something  illogical  and  unnatural  in  saying, 
if  a  person  to  whom  I  commit  my  property  to  keep  for  me  neglects 
to  return  it  to  me  when  demanded  of  him,  that  I  rather  than  he  must 
show  the  cause  of  his  default ;  that  I,  knowing  nothing  of  the  cause 
for  the  neglect  of  my  bailee  to  return  my  property  must  give  the 
explanation  rather  than  he  give  the  explanation  who  knows  all  about 
it.    The  folly  of  the  rule,  if  applied  literally,  is  vigorously  assailed  by 


900  Casss  on  Evidence 

Peckham,  J.,  in  Collins  v.  Bennet,  46  N.  Y.  480,  in  the  case  of  a  hired 
horse  returned  to  the  bailor  in  a  foundered  condition. 

And  so  it  is  that  many  courts  have  attempted  to  qualify  the  rule 
by  annexing  exceptions  to  it.  Judge  Story  thought  there  might  be 
an  exception  in  complicated  cases,  and  he  would  apply  the  rule  in  the 
law  of  bailments  and  not  to  common  carriers,  and  that  eminent  jurist 
intimates  that  an  exception  should  obtain  in  a  case  where  the  bailor 
demands  a  thing  loaned,  and  the  bailee  makes  a  general  refusal  without 
offering  any  special  excuse  therefor.  Story,  Bailments,  213,  298.  The 
Pennsylvania  Court  in  Clark  v.  Spratt,  10  Watts,  335,  places  the  bur- 
den of  explanation  on  the  bailee  so  far  as  to  say  that  he  is  required 
to  show  that  the  goods  have  been  lost  and  the  manner  they  were  lost, 
although  the  presumption  is  that  a  bailee  has  been  faithful  to  his  trust, 
and  that  the  general  burden  of  proof,  after  this  exposure  of  facts  by 
the  bailee  (in  court  or  out  of  court  we  assume)  rests  upon  the  bailor 
to  show  the  contrary.  This  case  was  approved  by  this  court  in  Mills 
V.  Gilbreth,  47  Maine,  320,  a  case  in  principle  very  much  like  the 
present. 

There  are  two  doctrines,  therefore,  to  be  found  in  the  books  on  this 
subject — one  that  the  burden  of  proof  shifts,  and  the  other  that  it  does 
not.  But  those  who  maintain  the  latter  position  admit  that,  while  the 
general  burden  of  proof  does  not  change,  if  a  bailor  does  not  get  any 
account  of  the  loss  of,  or  an  injury  to,  the  articles  bailed,  the  proof 
of  the  fact  of  demand  and  refusal  without  such  explanation  will  make 
out  a  prima  facie  case  for  the  bailor,  and  a  conclusive  case  unless  the 
bailee  assumes  the  burden  of  evidence  and  shows  facts  proving  the 
contrary.  Mr,  Schouler,  in  his  valuable  work  on  bailments,  discusses 
this  vexed  and  rather  intricate  question  very  instructively,  and  adduces 
the  leading  authorities  on  both  sides.  In  a  note  he  undertakes  to  con- 
struct a  test  which  will  be  in  consonance  with  the  rule  and  its  com- 
plicated exceptions,    Schouler,  Bailments,  22,  23,  24,  and  note. 

Exceptions  overruled. 


CENTRAL  BRIDGE  CORPORATION  v.  BUTLER. 

68  Mass.  130.     (i8§4) 

Assumpsit  for  tolls.    Plea,  the  general  issue.    Trial  in  the  court  of 
common  pleas,  before  Hoar,  J,,  when  the  plaintiffs  introduced  evidence 


Burden  oi?  Proof  901 

that  the  defendant,  who  resided  in  Lowell,  and  his  servants,  with 
horses,  carriages  and  other  vehicles,  within  the  time  mentioned  in  the 
writ,  often  passed  over  the  plaintiffs'  bridge  from  Lowell  to  Dracut, 
without  paying  the  tolls  granted  to  the  plaintiffs  by  law. 

The  defendant  contended  that  he  was  not  liable  to  pay  toll,  because 
he  and  his  servants  passed  the  bridge  on  the  way  to  and  from  the 
lands  named  in  a  vote  of  the  plaintiff  corporation,  purporting  to  exempt 
from  the  payment  of  toll  certain  persons  named,  and  all  persons  who 
might  thereafter  have  their  homes  upon  certain  lands  in  Dracut,  and 
all  persons  going  to  or  from  any  of  said  lands  upon  the  business,  of 
any  person  owning  or  having  his  home  thereon,  and  all  carriages,  etc., 
going  to  or  from  any  of  said  lands  upon  such  business,  or  for  the  pur- 
pose of  couA^eying  any  of  said  persons  to  or  from  the  lands  described. 
A  witness  called  by  the  defendant  testified  that  he  and  another  per- 
son had  been  permitted  to  pass  the  plaintiffs'  bridge,  without  paying 
tolls  to  go  to  the  house  of  Dr.  Hildreth,  the  father-in-law  of  the  de- 
fendant, in  Dracut,  to  which  it  was  admitted  that  the  defendant  and 
members  of  his  family  frequently  went,  over  the  plaintiff's  bridge. 
The  plaintiffs  objected  to  the  admission  of  this  testimony;  but  their 
objection  was  overruled. 

The  plaintiffs  asked  the  judge  to  rule  that  the  passing  of  the  plain- 
tiffs' bridge  by  the  defendant,  without  paying  toll,  being  proved,  the 
burden  of  proof  was  upon  the  defendant  to  prove  that  he  had  a  right 
to  pass  the  bridge  without  paying  toll,  and  that  no  such  defense  was 
open  to  the  defendant  on  the  general  issue.  But  the  judge  ruled  that 
the  burden  of  proof  was  upon  the  plaintiffs,  to  prove  not  only  the 
passing  of  the  bridge  by  the  defendant,  but  also  that  he  had  not  the 
right  to  do  so  by  virtue  of  the  vote  above  mentioned. 

The  jury  returned  a  verdict  for  a  part  only  of  the  plaintiffs'  claim ; 
and  the  plaintiffs  alleged  exceptions. 

BiGELOW,  J.  It  was  incumbent  on  the  plaintiffs  to  prove  a  liability 
on  the  part  of  the  defendant  to  pay  the  tolls  which  they  sought  to 
recover  in  this  action.  For  this  purpose  they  relied  on  the  implied 
assumpsit  arising  from  proof  that  the  defendant  had  passed  their 
bridge  without  paying  the  usual  tolls.  This  made  out  a  prima  facie 
case,  and  would  entitle  them  to  recover  unless  the  defendant  offered 
some  evidence  to  rebut  it.  But  it  does  not  follow  that  the  burden  of 
proof  was  thereby  shifted.  On  the  contrary,  in  the  absence  of  any 
matter  in  avoidance  or  discharge,  the  fact  to  be  proved  remained  the 
same.  By  showing  that  certain  persons  were  by  the  votes  of  the  cor- 
poration exempt  from  toll,  and  by  proof  tending  to  show  that  the  de- 


902  Cases  on  Evidence 

fendant  was  included  among  them,  he  only  endeavored  to  meet  and 
overthrow  the  case  which  the  plaintiffs,  by  their  evidence,  had  sought 
to  establish.  The  plaintiffs  averred  the  legal  liability  of  the  defendant 
to  pay  tolls.  To  this  averment  the  evidence  on  both  sides  was  di- 
rected; and  as  the  plaintiffs  affirmed  it  as  the  foundation  of  their 
claim,  so  they  were  bound  to  sustain  it  by  proof  in  all  stages  of  the 
trial. 

The  burden  of  proof  and  the  weight  of  evidence  are  two  very  dif- 
ferent things.  The  former  remains  on  the  party  affirming  a  fact  in 
the  support  of  his  case,  and  does  not  change  in  any  aspect  of  the  cause ; 
the  latter  shifts  from  side  to  side  in  the  progress  of  a  trial,  according 
to  the  nature  and  strength  of  the  proofs  offered  in  support  or  denial 
of  the  main  fact  to  be  established.  In  the  case  at  bar,  the  averment 
which  the  plaintiff  was  bound  to  maintain  was,  that  the  defendant 
was  legally  liable  for  the  payment  of  tolls.  In  answer  to  this,  the  de- 
fendant did  not  aver  any  new  and  distinct  fact;  such  as  payment,  ac- 
cord and  satisfaction,  or  release;  but  offered  evidence  to  rebut  this 
alleged  legal  liability.  By  so  doing,  he  did  not  assume  the  burden  of 
proof,  which  still  rested  on  the  plaintiffs ;  but  only  sought  to  rebut  the 
prima  facie  case  which  the  plaintiffs  had  proved  against  him.  The 
ruling  of  the  court  on  this  point  was  therefore  right. 

Exceptions  overruled. 


CODY  V.  MARKET  ST.  RAILWAY  CO. 
148  Cal.  go.     (1905) 

Angei^lotti,  J.  This  is  an  action  for  damages  for  personal  injuries, 
alleged  to  have  been  received  by  plaintiff  through  the  negligence  of 
defendant  while  alighting  from  one  of  defendant's  cars,  upon  which 
she  was  a  passenger.  She  obtained  judgrtient  for  seven  hundred  and 
fifty  dollars,  and  defendant  appeals  from  an  order  denying  its  motion 
for  a  new  trial.  The  only  points  made  on  this  appeal  relate  to  the 
action  of  the  trial  court  in  the  matter  of  instructing  the  jury. 

The  trial  court,  at  the  request  of  plaintiff,  instructed  the  jury  as 
follows,  viz :  "The  rule  concerning  the  obligations  of  common  carriers 
of  passengers  is  thus  stated  by  the  Supreme  Court  of  this  state  in 
McCurrie  v.  Southern  Pacific  Co.,  122  Cal.  561,  (55  Pac.  325) :  The 
carriers  of  passengers  are  required  to  exercise  the  highest  degree  of 


'  BuimEN    OF    PROO?  903 

care  in  their  transportation,  and  are  responsible  for  injuries  received  by 
them  while  in  the  course  of  transportation  which  might  have  been 
avoided  by  the  exercise  of  such  care.  Hence,  when  it  is  shown  that 
the  injury  to  the  passenger  was  caused  by  the  act  of  the  carrier  in 
operating  the  instrumentahties  employed  in  his  business,  there  is  a 
presumption  of  negligence  which  throws  upon  the  carrier  the  burden 
of  showing  that  the  injury  was  sustained  without  any  negligence  on 
his  part.' "  It  is  claimed  that  the  court  erred  in  giving  this  instruc- 
tion. 

It  is  suggested  that  the  efl'ect  of  this  instruction  was  to  make  it  in- 
cumbent on  defendant  to  overcome  the  showing  of  plaintiff  by  a  pre- 
ponderance of  evidence,  whereas  under  the  universally  recognized  rule 
no  verdict  could  be  rendered  for  plaintiff  in  the  absence  of  a  pre- 
ponderance of  evidence  showing  negligence  on  the  part  of  defendant. 
That  this  contention  is  not  well  founded  is  shown  by  the  opinion  of 
this  court  in  several  cases  where  the  question  has  been  discussed. 
Such  an  instruction  simply  informs  the  jury  that,  when  the  facts  stated 
therein  are  shown,  a  presumption  of  negligence  on  the  part  of  the 
carrier  arises,  which  is  sufficient  to  make  out  a  prima  facie  (^ase  for 
the  plaintiff,  and  require  the  defendant  to  meet  the  case  thus  made,  or, 
in  other  words,  to  answer  the  prima  facie  case,  or  it  will  prevail.  But 
it  does  not  require  a  defendant  to  show  want  of  negligence  by  a  pre- 
ponderance of  evidence.  It  does  no  more  than  to  require  him  to  make 
such  showing  as  to  want  of  negligence  as  will  leave  the  jury,  W^th  all 
the  evidence  before  it,  unsatisfied  as  to  whether  there  was  negligence 
on  defendant's  part,  and  if  on  the  whole  case  the  scale  does  not  pre- 
ponderate in  favor  of  the  presumption  of  negligence  and  against  the 
defendant's  proof,  plaintiff  is  not  entitled  to  verdict,  for  he  has  not 
established  his  case  by  a  preponderance  of  evidence,  as  he  was  com- 
pelled to  do  under  the  well-settled  rule.  The  term  "burden"  or  "bur- 
den of  proof"  is  frequently  used  to  signify  simply  the  burden  of  meet- 
ing a  prima  facie  case,  rather  than  the  burden  of  producing  a 
preponderance  of  evidence,  and  as  used  in  the  instruction  in  question 
imported  nothing  more.  The  distinction  is  clearly  shown  in  the  opin- 
ions of  this  court  in  Scott  v.  Wood,  81  Cal.  398,  400,  (22  Pac.  871)  ; 
Patterson  v.  San  Francisco  etc.  Ry.  Co.,  (Cal.)  81  Pac.  531,  533;  and 
Kahn  v.  Triest  etc.  Co.,  139  Cal.  340,  344,  (73  Pac.  164).  Upon 
the  proposition  that  it  was  necessary  for  the  plaintiff  to  prove  her  case 
by  a  preponderance  of  evidence,  the  trial  court  correctly  instructed  the 
jury  that  they  should  find  a  verdict  for  the  defendant  "unless  the 
plaintiff  has  shown  by  a  preponderance  of  the  evidence  that  she  was 


904  Cases  on  Evidence 

injured  by  the  negligence  of  the  defendant,"  and  there  could  not  rea- 
sonably have  been  any  misunderstanding  on  the  part  of  the  jury  as  to 
the  meaning  of  the  instruction  complained  of.  It  is  the  settled  law 
in  this  state  that  such  an  instruction  may  properly  be  given  where  the 
circumstances  of  the  case  justify  it,  and  that  it  is  not  open  to  the  ob- 
jection under  discussion.  (Osgood  v.  Los  Angeles  Traction  Co.,  137 
Cal.  280,  283,  (79  Pac.  169,  92  Am.  St.  Rep.  171)  ;  Green  v.  Pacific 
Lumber  Co.,  130  Cal.  435,  440,  [62  Pac.  747].)  The  instruction 
correctly  stated  the  law  applicable  to  common  carriers  of  passengers 
(McCurrie  v.  Southern  Pacific  Co.,  122  Cal.  558,  561,  (55  Pac.  324), 
and  the  rule  stated  therein  is  as  applicable  to  street-railway  companies 
as  it  is  to  other  carriers.  (Bosqui  v.  Sutro  Railroad  Co.,  13I  Cal. 
390,  400,  [63  Pac.  682].) 

The  order  denying  the  motion  for  a  new  trial  affirmed. 

Shaw,  J.,  and  Van  Dyke,  J.,  concurred. 


DIETERLE  v.  BEKIN. 
14s  Cal.  683.     (1904) 


Gray,  C.  This  is  an  action  for  damages  for  the  conversion  of  cer- 
tain personal  property  belonging  to  the  plaintiffs,  and  in  the  complaint 
alleged  to  have  been  delivered  to  defendant  in  the  ordinary  course  of 
business  for  storage  in  his  warehouse  in  the  city  of  Los  Angeles.  The 
complaint  alleges  that  subsequent  to  the  storage,  plaintiffs  being  still 
the  owners  of  said  property  and  entitled  to  its  possession,  demanded 
possession  thereof,  and  defendant  refused  to  comply  with  the  demand. 

The  answer,  in  addition  to  numerous  denials,  sets  up  as  a  separate 
defense  that  the  property  was  deposited  for  storage  with  the  defend- 
ant, and  that  thereafter  and  before  any  demand  was  made  upon  the 
defendant,  the  said  personal  property  "was  without  fault  or  negli- 
gence of  this  defendant  destroyed  by  fire." 

The  defendant  also  pleaded  as  a  separate  defense  that  he  received 
the  property  under  a  written  agreement  to  the  effect  that  the  "de- 
fendant should  be  under  no  liability  for  loss  of  said  personal  property 
by  fire." 

The  findings  substantiate  the  allegations  of  the  complaint,  except  as 
to  the  value  of  the  property,  which  is  found  to  be  fifteen  hundred 
dollars. 


Burden  of  Proof  905 

Upon  these  findings  the  defendant  had  judgment  for  costs.  The 
plaintiffs  appeal  from  said  judgment  and  from  the  order  thereafter 
made  denying  their  motion  to  vacate  said  judgment  and  enter  a  differ- 
ent judgment  in  plaintiff's  favor  for  fifteen  hundred  dollars. 

We  think  the  judgment  should  be  reversed. 

The  plaintiffs  made  out  their  case  when  they  established  to  the  satis- 
faction of  the  court  the  allegations  of  their  complaint.  It  was  then 
for  the  defendant  to  establish  the  allegations  of  his  affirmative  de- 
fense if  he  could  do  so.  The  court  has  found  that  he  was  grossly 
negligent  in  the  matter  of  exposing  the  property  to  loss  by  fire,  and 
that  the  property  was  destroyed  by  fire  of  an  unknown  origin.  The 
facts  found  suggest  at  least  a  probability  that  the  fire  came  from  the 
same  source  from  which  emanated  the  "more  than  ordinary  risk"  under 
which  the  property  was  so  negligently  placed  by  the  defendant.  Under 
the  circumstances  disclosed  by  the  findings,  the  burden  which  the  de- 
fendant had  assumed  in  his  affirmative  defense  was  upon  him  to  satis- 
fy the  court  that  the  fire  did  not  come  from  this  source. 

It  is  not  necessary  to  hold  that  the  burden  of  proof  was  upon  the 
defendant  solely  for  the  reason  that  he  had  assumed  it  in  his  answer. 
Irrespective  of  any  consideration  upon  whom  the  burden  of  proof  lay, 
the  issue  before  the  court  was  to  determine  whether  the  defendant  had 
exercised  the  ordinary  care  required  of  him  as  a  warehouseman,  and 
whether  his  negligence  in  that  respect  had  contributed  to  the  loss  of 
the  plaintiffs'  property,  and  upon  this  issue  the  court  has  not  made  any 
finding.  Whether  the  fire  occurred  without  his  knowledge,  or  whether 
the  origin  of  the  fire  was  unknown,  were  not  in  themselves  conclusive 
of  this  question.  The  character  of  the  building  provided  by  him  for 
the  storage  of  the  property,  the  character  of  the  business  for  which  he 
had  permitted  a  portion  of  the  building  to  be  used,  and  in  view  thereof 
the  precautions  taken  by  him  for  the  prevention  of  fire  and  for  its 
extinguishment  were  also  elements  proper  to  be  considered  in  deter- 
mining this  issue. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is  re- 
versed, with  directions  to  the  lower  court  to  make  a  finding  upon  the 
evidence  already  before  it  and  such  other  evidence  as  the  parties  may 
present  upon  this  issue  as  to  defendant's  negligence,  and  to  render 
judgment  accordingly. 

HiNSHAW,  J.,  LORIGAN,  J.,  McFaRI^AND,  J. 


'906  Cases  on  Evidence 

ST.  LOUIS  &  S.  F.  R.  CO.  v.  DREYFUS  et  al. 
42  Okla.  401.     (1914) 

Opinion  by  Harrison,  C.  This  is  an  appeal  from  a  Judgment  ren- 
dered upon  two  separate  causes  of  action  based  upon  an  alleged  negli- 
gence in  delivery  of  two  separate  shipments  of  bananas.  There  was  no 
separate  finding  as  to  liability  in  each  shipment,  but  a  general  verdict 
for  the  sum  of  $314.12  was  found  in  favor  of  plaintiffs  below.  The 
grounds  for  reversal  arose  from  the  issues  involved  in  the  first  cause 
of  action,  which  was  based  upon  the  allegation  that,  by  the  careless  and 
neghgent  failure  to  deliver  a  car  of  bananas,  the  fruit  became  frozen 
and  damaged  to  the  amount  sued  for.  The  carrier  defended  on  the 
ground  that  the  damage  was  not  the  result  o*f  the  carrier's  negligence, 
but  the  result  of  a  severe  snowstorm  which  froze  and  blocked  up  the 
switches  and  covered  the  tracks  to  such  an  extent  that  the  car  could 
not  be  delivered  sooner  than  it  was.  The  facts  are  that  the  car  of  fruit 
arrived  at  Tulsa  between  seven  and  eight  o'clock  on  the  evening  of  the 
15th  of  February;  that  during  the  night  of  the  15th  a  blizzard  and 
snowstorm  came  up  and  the  weather  turned  severely  cold;  that  the 
blizzard  raged  throughout  the  day  and  night  of  the  i6th,  and  the  car 
was  not  set  at  plaintiflFs'  warehouse  until  the  17th. 

The  decisive  issue  of  fact  in  this  case  was  whether  the  storm  was 
in  fact  so  severe  that  the  carrier  could  not  have  set  the  car  at  plain- 
tiffs' warehouse  on  the  1 6th,  and  thereby  averted  the  loss.  This  court 
in  M.,  K.  &  T.  Ry.  Co.  v.  Johnson,  34  Okla.  582,  126  Pac.  567,  held: 

We  think  the  facts  that  the  company  was  operating  passenger  trains, 
and  the  testimony  that  a  switch  engine  was  seen  operating  in  the  yards 
during  the  day  of  the  i6th,  and  the  fact  that  the  car  was  delivered 
on  the  17th,  which  it  is  admitted  was  colder  than  the  i6th,  were  suffi- 
cient to  raise  the  issue  as  to  whether  the  carrier,  by  the  exercise  of 
reasonable  eflforts,  could  have  delivered  the  fruit  on  the  i6th,  and  that 
it  was  not  improper  to  submit  such  issues  to  the  jury. 

But  the  court,  in  paragraph  6  of  its  charge,  instructed  the  jury  as 
follows : 

"The  court  instructs  the  jury  that  the  burden  of  proof  is  upon  the 
defendant  to  satisfy  the  jury  by  its  evidence,  not  only  that  the  loss 
sustained  by  the  plaintiflF  in  its  first  cause  of  action  was  occasioned 
by  the  act  of  God,  but  also  that  the  defendant  exercised  due  care  and 
diligence  in  the  performance  of  its  duty  and  was  not  in  any  manner 


Burden  of  Proof  907 

negligent  in  doing  or  omitting  to  do  any  act  that  might  have  averted 
the  loss." 

This  instruction  was  excepted  to  by  defendant  and  presented  as 
ground  for  reversal  in  the  original  brief  of  the  company,  but  the  error 
in  this  instruction  was  overlooked  in  the  original  opinion  on  which  the 
judgment  of  the  lower  court  was  affirmed.  But  in  the  petition  for  re- 
hearing the  error  contended  for  therein  is  pointed  out  with  more  clear- 
ness and  argued  with  more  force,  and,  upon  reconsideration  of  this 
instruction,  we  believe  the  contention  of  plaintiff  in  error  should  be 
sustained.  This  instruction  unqualifiedly  places  the  burden  upon  the 
defendant  to  satsfy  the  jury  that  the  loss  was  occasioned  by  an  act 
of  God,  and  to  further  satisfy  them  that  the  loss  could  not  have  been 
averted  by  the  exercise  of  all  due  care  and  diligence.  The  burden  was 
not  on  the  defendant  until  plaintiflFs  had  made  a  prima  facie  case  which, 
without  further  proof,  would  have  entitled  them  to  recover.  And  the 
question  of  defendant's  negligence  in  the  failure  to  deliver  the  car 
on  the  i6th  being  a  close  question  of  fact,  it  is  readily  seen  that  the 
jury  could  have  been  easily  misled  by  the  foregoing  instruction,  espe- 
cially so  since  it  was  unqualified  by  any  other  paragraph  in  the  charge. 
The  correct  rule  as  to  the  burden  of  proof  in  such  cases  is  stated  by 
this  court  in  Armstrong,  Byrd  &  Co.  v.  111.  Cent.  R.  Co.,  26  Okla.  352, 
109  Pac.  216,  29  L.  R.  A.  (N.  S.)  671,  wherein  the  principal  question 
was  the  burden  of  proof.  The  court  in  the  syllabus,  after  defining 
what  constitutes  a  prima  facie  case,  says: 

"(a)  The  carrier,  by  proving  the  damage  was  due  entirely  to  the 
flood  or  act  of  God,  overcomes  such  prima  facie  case,  and  the  burden 
shifts  to  the  shipper,  then,  to  show  that  negligence  on  the  part  of  the 
carrier  co-operated  with  the  act  of  God  in  bringing  about  the  damage 
to  the  shipment,  in  order  to  recover." 

For  the  error  contained  in  the  above  instruction,  the  former  opinion, 
affirming  the  judgment,  is  withdrawn,  and  this  one  filed  instead,  and 
the  judgment  reversed,  and  the  cause  remanded. 

By  the  court:    It  is  so  ordered. 


9o8  Cases  on  Evidence 

FOSS  V.  McRAE. 
10^  Me.  140.     (ipop) 

Action  on  an  alleged  guaranty  by  the  defendants'  testator  of  the 
payment  of  some  fifty  overdue  promissory  notes  transferred  by  him  to 
the  plaintiff. 

Spear,  J,  This  case  comes  upon  exceptions  to  instructions  given 
by  the  presiding  justice  to  the  jury.  The  case  does  not  show  but,  in- 
asmuch as  the  exceptions  are  by  the  plaintiff,  we  assume  that  the 
verdict  was  for  the  defendant. 

The  case  involved  an  action  on  the  alleged  guaranty  by  the  defend- 
ants' testator  of  the  payment  of  certain  over-due  promissory  notes 
transferred  by  him  to  the  plaintiff.  To  sustain  her  allegations  the 
plaintiff  offered  in  evidence  a  typewritten  instrument  bearing  the  signa- 
ture of  the  defendant's  testator  of  the  following  tenor: 

"Machias,  Maine,  April   11,   1907. 

This  is  to  certify  that  I  have  this  day  in  a  settlement  of  business 
transacted  with  Mary  E.  Foss,  conveyed  and  sold  to  her  a  lot  of  notes 
for  which  I  have  received  payment  in  full.  And  will  guarantee 
them. 

(Signed)     Asa  T.  McRae.         (Witness)     M.  E.  McRae." 

The  defendants  had  seasonably  given  written  notice  to'Tihe  plaintiff 
of  their  denial  of  the  execution  of  this  instrument,  and  at  the  trial, 
the  subscribing  witness,  who  was  one  of  the  defendant's  executors, 
testified  that  at  the  time  of  the  execution  and  delivery  of  the  instru- 
ment it  did  not  contain  the  last  four  words  "And  will  guarantee 
them,"    There  was  also  evidence  upon  both  sides  of  this  issue. 

The  plaintiff  contended  that  upon  this  issue  the  burden  of  proof 
was  upon  the  defendants,  but  the  presiding  justice  instructed  the  jury 
as  follows,  viz: 

"So  the  question  is  narrowed  right  down  to  this :  Were  those  words, 
the  final  four  words  in  this  paper,  written  on  there  when  Mr.  Asa 
T..  McRae  signed  that  paper?  And  the  burden  is  upon  the  plaintiff, 
Mrs.  Foss,  or  her  agents,  who  conduct  the  suit,  to  convince  you  by 
evidence  that  in  fact  and  in  truth  those  words  were  upon  that  paper 
when  signed  by  Asa  T.  McRae;  and  has  she  done  so?  She  claims 
that  she  has,  and  she  first  relies  upon  the  circumstances  that  the  words 
are  found  to  be  on  the  paper  now. 

That  is  prima  facie.  By  prima  facie  we  mean  that,  if  nothing  more 
appeared,  if  that  was  all  there  was,  just  the  paper  itself,  with  no  con- 


Burden  of  Proof  909 

tradiction,  it  would  be  taken  as  sufficient  evidence  that  they  were  there 
when  signed ;  but,  it  appearing  that  it  is  disputed  that  they  were  there, 
being  some  evidence  to  the  contrary,  the  burden  is  still  upon  the  plain- 
tiff throughout  to  convince  you  by  evidence  that,  upon  the  whole, 
you  believe  the  words  were  there  when  signed." 

The  instructions  were  correct.  The  plaintiff  under  the  notice  and 
rule  was  required  to  prove  the  execution  of  the  instrument  upon 
which  she  sought  to  recover.  To  accomplish  this,  the  subscribing 
witness  was  put  upon  the  stand.  His  evidence  clearly  developed  the 
real  issue  in  the  case.  When  he  had  testified  to  the  execution  of  tlie 
paper,  as  we  presume  he  did  under  the  notice,  the  plaintiff  had  estab- 
lished a  prima  facie  case,  as  the  words  in  dispute  appeared  upon  the 
face  of  the  paper  whose  execution  had  been  proved.  Had  the  case 
stopped  here  the  plaintiff  would  have  been  entitled  to  recover.  This 
is  precisely  what  the  presiding  justice  instructed  the  jury  at  this  stage 
of  the-proceedings.  But  the  case  did  not  stop  here.  The  very  witness 
the  plaintiff  relied  upon  to  prove  execution,  testified  that  the  disputed 
words — the  substance  of  the  plaintiff's  case — were  not  upon  the  in- 
strument when  he  witnessed  the  defendant's  signature.  Again,  it  is 
apparent,  if  the  case  had  stopped  at  this  point,  the  defendant  would 
have  been  entitled  to  the  verdict,  as  the  testimony  of  the  witness,  show- 
ing a  material  alteration,  is  undisputed  and  must  therefore  prevail. 
Hence,  it  follows  that  it  was  incumbent  upon  the  plaintiff,  to  entitle 
her  to  recover,  to  proceed  further  and  introduce  evidence  tending  to 
overcome  the  testimony  of  the  attesting  witness. 

The  issue  of  alteration  now  having  been  raised,  it  became  her  duty 
to  assume  the  burden  upon  all  the  evidence  of  persuading  the  jury  that 
the  words  of  guaranty  were  upon  the  paper  when  it  was  executed. 

Now,  while  the  burden  of  evidence  may  be  said  to  have  shifted  from 
the  plaintiff  to  the  defendant,  when  she  had  made  out  a  prima  facie 
case,  and  from  the  defendant  to  the  plaintiff,  again,  when  their  evi- 
dence had  overcome  the  prima  facie  case,  the  burden  of  proof  had 
not  changed  at  all.  It  was  incumbent  upon  the  plaintiff,  in  the  end, 
upon  all  the  evidence,  however  it  may  have  shifted  from  one  side  to  the 
other,  to  establish  the  truth  of  the  allegation  upon  which  she  sought 
to  recover,  that  the  instrument  contained  the  disputed  words. 

"Burden  of  proof"  and  "burden  of  evidence"  are  often  confused. 
The  phrase,  burden  of  proof  is  in  fact  more  philosophical  than  prac- 
tical. 

It  means  generally  that  a  plaintiff,  however  often  the  evidence  shifts, 
must  upon  the  whole,  persuade  the  jury,  by  legal  evidence,  that  his 


910  Cases  on  Evidence 

contention  is  right.  The  risk  of  non-persuasion  is  all  the  time  upon 
him.  If  he  fails  to  persuade,  he  loses  his  case.  This  risk  of  non- 
persuasion  is  the  burden  which  he  must  assume. 

Exceptions  overruled. 

Note.  The  term  "burden  of  proof  is  used  in  a  double  sense.  This  has 
caused  much  confusion  in  the  decisions  (Supreme  Tent  v.  Stensland,  206  111. 
124,  99  Am.  St.  Rep.  137).  In  its  primary  and  true  sense  it  means  the  duty 
of  establishing  one's  case.  In  its  secondary  sense  it  means  the  duty  of  going 
forward  with  evidence.  This  confusion  would  b©  eliminated  by  restricting 
the  use  of  the  term  to  its  primary  meaning  and  using  the  term  "burden  of 
evidence"  when  referring  to  the  duty  of  going  forward  with  evidence. 


TABLE  OF  SELECTED  CASES 
A. 

Page 

Alford   V.   Johnson,   103   Ark.   236 57 

Allen  &   Trammell   v.   Turnham,   83  Ala.   323 733 

Allen  et  al.   v.   Furbish,   70   Mass.   504 673 

Alonzo  V.   State,  15  Tex.  App.  378 516 

Alquist   V.    Eagle    Iron    Works,    126    la.    67 82 

Anchor    Milling   Co.    v.    Walsh,    108    Mo.    277 330 

Anderson    v.    Berrum,    36    Nev.    463 95 

Andrews,   Allen   &  Moorefield  v.   Tucker,   127   Ala.   602 777 

Anna  Ames  v.  Anna  Brown  et  al.,  22  Minn.  257 566 

A,  T.  &.  S.  S.  Ry.  Co.  v.  Johns,  36  Kan.  769 409 

Appeal   of  John   F.   Hartranft  et  al.,   85   Pa.   433 73 

Atkinson   v.    Mott,   102    Ind.    431 867 

Atlantic   Coast  Line  Ry.  Co.  v.  Hill,  12  Ga.  App.   392 668 

Architects  &  Builders  v.  Stewart,   68   W.   Va.  507 352 

Armstrong  v.    Granite   Co.,    147   N.   Y.    495 772 

Arnold  v.   Estate   of  Arnold,   13   Vt.   362 16 

Austin   V.   Galloway,   73   W.   Va.   231 600 

B. 

Bank  v.  Zorn,  14   S.  C.    444 136 

Banning    v.    Banning,    80    Cal.    271 / 508 

Barbee    v.    Goodale,    28    Ore.    465 793 

Barhyte   v.    Summers,    68    Mich.    341 79 

Bauer  Grocery  Co.  v.   Sanders   &   Henrich,  74   Mo.   App,   657 846 

Becker   v.    Kock,    104   N.   Y.    394 100 

Bennett  v.    Beam,    42    Mich.    346 476 

Bertram  v.  Witherspoon's  Admr.,   138   Ky.   116 318 

Blanchard    v.    Ridgeway,    179    Mich.    491 708 

Bliss  V.  Mclntyre  et  al.,   18   Vt.  466 560 

Bollinger    v.    Gallagher,    170    Pa.    St.    84 781 

Bonicamp    v.    Starbuck,    25    Okla.    483 801 

Eornstein  v.   Berliner,   184   111.   App.    519 593 

Boston  Water  Power  Co.  v.  Hanlon,  132  Mass.  483 312 

Eowland    v.    McDonald,    82    Kan.    84 616 

Boyle    V.    The    State,    97    Ind.    322 222 

Brick    V.    Brick,    98    U.    S.    514 818 

Brentner  v.  The  C.  M.  &  St.  P.  Ry.  Co.,  58  la.  625 669 

Brock    V.    Satchell,    130   La.    853 624 

9" 


912  Cases  on  Evidence 

Pagk 

Brott   V.    State,    70    Neb.    395 546 

Brown   v.   Com.,   73    Pa.   St.    100 208 

Bunnell   v,    Butler,    23    Conn.   65 99 

Buries  v.   Oregon,  etc.,  R.  R.  Co.  et  al.,  49  Mont.  129 852 

Burke   v.   Dulauey,    153   U.   S.   228 754 

Burns  &  Smith  Lumber  Co.  v.  Doyle,  71  Conn.  742 735 

Buswell  V.  Fuller,   89   Me,  600 898 

Butler  V.  Mail  &  Express  Pub.  Co.,  171  N.  Y.  208 640 

C. 

Cadwalader   v.   Price,   111    Md.    310 306 

Cairnes    v.    Mooney,    62    Vt.    172 3 

California  Title  etc.  Co.  v.  Pauly,  111  Cal.  123 730 

Campbell   et  al.  v.   Campbell   et   al.,   130   111.   466 37 

Campion   v.   McCarthy,   228   111.   87 250 

Case  V.  Mayor  of  Mobile,   30  Ala.   538 866 

Central  Bridge  Corporation  v.  Butler,  68  Mass.  130   , 900 

Central   Savings   Bank  v.   O'Connor,  132   Mich.   578 709 

Cerny   v.    Glos,    261    111.    331 587 

C.  R.  I.  &  P.  R.  R.  Co.  V.  Bell,  70  111.  102 Ill 

C.  &  E.  I.  R.  R.  Co.  V.  Chancellor,  165  111.  438 386 

C.  &  E.  I.  R.  R.  Co.  V.  Wallace,  202  111.  129 482 

C.  &  N.  W.  R.  R.  Co.  V.  IngersoU,  65   111.  399 596 

C.  St.  L..  &  N.  O.  R.  R.  Co.  V.  Benedict's  Admr.,  154  Ky.  675 633 

Channel   Commercial   Co.  v.  Hourihan,  20   Cal.  App.   647 773 

Chateaugay   Iron   Co.   v.   Blake,   187   U.   S.   476 327 

Chicago  &  Alton  R.  R.  Co.  v.  Mahon  and  Hunt,  42  111.  158 401 

Cheever  v.  Congdon,   34   Mich.   296 628 

Chisholm  v.   The  Beaman  Machine   Co.,   160  111.    101 350 

Christensen    v.    Thompson,    123    la.    717 89 

Citizens'   Rapid   Transit   Co.   v.    Dew,    100   Tenn.   318 276 

City  of  South  Bend  v.  Turner,  156   Ind.  418 525 

Clark    V.    Turner,    50    Neb.    290 450 

Coffman   v,   Malone,    98   Neb.   819 690 

Cohee   et  al.   v.   Turner  &  Wiggins,   37  Okla.   778 789 

Colonial  Jewelry  Co.  v.  Brown  et  al.,   38   Okla.  44 763 

Cody  V.   Market  St.  Ry.  Co.,  148  Cal.  90 902 

Coe  V.  National  Council  of  K.  &  L.  of  S.,  96  Neb.  130 883 

Com.  V.   Culver,    126    Mass.    464 5 

"     V.    Sapp,    90    Ky.    580 33 

"     V.   Griffin,   110 -Mass.    181 65 

"     V.    Cronin,    185    Mass.    96 65 

"     V.    Dorr,    216    Mass.    314 88 

"      V.    Jeffs,    132    Mass.    5 141 

"     V.   Churchill,   52    Mass.    538 161 

"     V.   Union   Ins.   Co.   etc.,   41    Okla.   342 , 590 

"     V.    O'Brien,   119    Mass.    342, 171 


.  Table  of  Cases  Selected  913 

Page 

"     V.    Myers,    160    Mass.    530 179 

"      V.    Mathews,    89    Ky.    287 231 

"      V.    Van   Horn,    188    Pa.    St.    143 382 

"      V.    M.   Pike,    57    Mass.    181 427 

"     V.   Sturtivant,   117    Mass,    122 461 

"     V.    Merriam,    31    Mass.    518 497 

"      V.    Bradford,    126    Mass.    42 499 

"     T.    Bank,    98    Mass.    12 583 

"      V.    Blood,    77    Mass.    74 595 

"      V.    Stevenson,    142    Mass.    466 '629 

"      V.    Morrell,   99    Mass.    542 671 

"      V.    Trefethen,    157    Mass.    180 373 

Conely   v.   McDonald,    40    Mich.    150 7 

Connecticut   Fire  Ins.  Co.   v.   Moore,    154   Ky.    18 623 

Connecticut  Mutual  Life  Ins.  Co.  v.  Lathrop,  111  U.  S.  612 457 

Connecticut   Mutual   Life    Ins.    Co.    v.    Hillmon,    145    U.    S.    285 389 

Continental  National   Bank  v.   First  National  Bank,  108  Teua.   374 360 

Continental   Casualty   Co.  v.   Wynne.   36   Okla.   325 519 

Cook  et  al.  v.   Castner  et  al.,   63   Mass.   266 62 

Corr  V.   Sellers,   100   Pa.   St.   169 ",,...  333 

Coombs  et  al.  v.  Cook,  35   Okla.  326 655 

Ooonrod   v.    Madden,   126   Ind.    197 598 

Copperman  v.   People,   50   N.   Y.   591 495 

Corona   Kid  Co.  v.  Lightman,  84  N.  J.  L.   363 601 

Cornell   v.    Green,    10    S.    &   R.    (Pa.)    16 197 

County    of   Bibb    v.    Reese,    115    Ga.    346 547 

County   of   Mahaska   v.   Ingalls,   16    la.    81 280 

Cragin   v.   Carleton,   21    Me.    492 719 

Crelier   v.    Mackey,    243    Pa.    St.    363 786 

Croswell   v.  Labree,   81   Me.   44 573 

Crocker  v.   McGregor,   76   Me.    282 152 

Currier  v.  Gale,   80   Mass.    504 292 

Cummings  v.  Nichols,  13  N.  H,  420 325 

D. 

Dady  v.   O'Rourke,   172  N.  Y.    447 720 

Davis    V.    Com.,    95    Ky.    19 189 

Davis   V.    State,    46    Fla.    138 545 

Davis  V.  Steele  &  Co.  v.  Eppler  et  al.,  38  Kan.  629 572 

Davis    v.    Montgomery,    205    Mo.    273 663 

De   Haven   v.    De   Haven,    77    Ind.    236 118 

Dean    v.    Wilkerson,    126    Ind.    338 277 

Decowski   v.    Grabarski,    181    111.   App.    279 795 

Decker   v.    Somerset    Ins.   Co.,    66   Me.   406 847 

Denver  v.  Rio  Grande  R.  R.  Co.  v.  United,  9  N.  M.  389 870 

Derby   v.    Thrall,    44    Vt.    413 579 

Dohmen  Co.  v.  Niagara  Fire  Ins.  Co.,  96  Wis.   38 356 


914  .  Cases  on  Evidence 

Page 

Dickinson  v.   White,   26  N.   D.   523 643 

Dieterle   v.   Bekin,   143   Cal.    683 904 

Dover  v.    Robinson  et  al.,   64   Me.   183 561 

Dorrell   v.    Sparks,   142   Mo.   App.    460 895 

E. 

Eastman   v.   Dunn,   34  R.  I.   419 589 

Eastern  BIdg.  and  Loan  Assoc,  t.  Williamson,  189  U.  S.  122 860 

Edwards  v.   Tracy,  62   Pa.   St.  376 635 

Elmer   v.   Fessenden,    151   Mass.   359 397 

Empire   Co.   v.   Lindenmeir,   54   Colo.   497 619 

Enfield   v.   Woods,   212   Mass.   547 301 

Ennis   v.    Wright,    217    Mass.    40 766 

Eltringham  v.   Earhardt,   67   Miss.   492 165 

Eureka  Springs  Ry.  Co.  v.  Timmons,  51  Ark.  459 880 

F. 

Fairbank   v.    Hughson,   58   Cal.    314 1 

Farwell   v.   St.   Paul   Trust   Co.,   45    Minn.    495 698 

Federal   Chemical  Co.  v.  Jennings,  112   Miss.   514 608 

Firemen's   Ins.   Co.  et  al.  v.   Seaboard  Air   Line  Ry.,  50   S.   E.   R.   452 

(N.   C.)    370 

FMsher  v.   King,  153   Pa.   St.   3 569 

First  Nat.  Bank  v.   Jamieson,   63  Ore.  163 630 

Flora   V.   Anderson,   75   Fed.   Rep.    217 245 

Forsyth  Mfg.   Co.  v.   Castlen,   112   Ga.   199 704 

Foss  V.   McRae,   105   Me.   140 908 

Freda  v.   Tishbein,    174    Mich.    391 413 

Fulkerson  v.  Holmes,  117  U.  S.  389 237 

Funderberg  v.  The   State,  100   Ala.  36 132 

Fuller   V.   Green,   64   Wis.   159 567 

G. 

Gabriel   v.    McMullen,   127    la.    426 71 

Gaither    v.    Blowers,    11    Md.    536 162 

Gage   V.   Eddy,    179    111.    492 840 

Gates   et   al.   v.   Bennett,    33   Ark.   475 ' 732 

Gertz  V.  Fitchburg  R.  R.  Co.,   137   Mass.   77 169 

Germania   Bank   of  Minneapolis  v.   Osborne,   81   Minn.   272 808 

Gibson   v.   Poor,    21   N.   H.    441 315 

Gilbert  &  Co.  v.  McGinnis  et  al.,  114   111.  28 810 

Gibson  v.  Swofford,   122   Mo.  App.   126 893 

Gladstone  Lumber  Co.  v.  Kelly,  64  Ore.  163 632 

Gleason  v.  Hamilton,  138  N.   Y.  353 570 

Glos   V.   Cessna,    207   111.    69 619 


Table  of  Cases  Selected  915 

Page 

Grabowski   v.   State,   126   Wis.   447 121 

Grand    Trunk  R.   R.   Co.   v.   Richardson,   91    U.    S.    454 147 

Grant   v.    State,   124   Ga.    757 432 

Grand  Lodge  B.  of  R.  T.  v.  Randolph,  186  IlL  89 520 

Greenlaw   v.   King   1   Beav.   137 45 

Green    v.    Almand,    111    Ga.    735 259 

Green  v.   City  of  Indianapolis,   22   Ind.   192 871 

Green    v.    Sneed,   101    Ala.    205 563 

Greenfield   Savings  Bank  v.   Stowell,  123  Mass.   196 552 

Grella   v.    Lewis   Wharf   Co.,    211    Mass.   54 /. .  843 

Greason  v.  St.  L.  I.  M.   &  S.   Ry.  Co.,   112  Mo.  App,  116 739 

Greinke  v.  The  Chicago  City  Ry.   Co.,  234  111.   564 444 

Grocery   Co.    v.    Bradford,    70    W.    Va.    496 641 

Granger  v.   Darling,   156   Mich.   31 92 

H. 

Hagan  v.  Merchant's  &  Banker's  Ins.  Co.,  81  la.  321 581 

Hammond    v.    Marian,    54    N.    Y.    398 468 

Hanley   v.    Donoghue,  116   U.    S.   1 876 

Hapke   v.    Davidson,   180    Mich.    138 765 

Hardage    v.    Durrett,    110   Ark.    63 693 

Harman  v.   Fisher,   90   Neh.   688 749 

Hartmyer   v.    Everly.   73   W.   Va.    88 770 

Harrison  v.   Morrison,   39   Minn.   319 682 

Hartman   Brewing  Co.  v.  Clark,   94    Md.    520 836 

Hardy  v.   Merrill,   56   N.   H.    227 453 

Harrlman  et  al.  v.  Stowe,  57  Mo.  93 426 

Harland   v.    Eastman,   107   111.    535 243 

Hathaway   V.    Goslant,    77    Vt.    199 308 

Harwood    v.   The   People,    26   N.    Y.    190 156 

Hatton  V.  Robinson,  31   Mass.   416 42 

Hartford  v.  Palmer,  16  Johns.   (N.  Y.)   143 26 

Haycock  v.   Johnson,   81   Minn.    49 728 

Hatch  V.  Hyde  et  aL,  14   Vt  25 684 

Harbison-Walker  Refractories  Co.  v.   Scott,  185   Ala.   641 618 

Hay  V.   Fire   Clay  Co.,   179   Mo.   App.   567 631 

Hatt  V.   May,   144   Mass.   186 174 

Haynes  v.   Trenton,   123    Mo.   326 524 

Mealy   v.   Young,   21   Minn.   389 805 

Herriott  v.  Kersey,   69   la.   Ill 347 

Hewitt  V.   Taunton  St.  Ry.   Co.,   167  Mkss.   483 154 

Hibernia  Savings  and  Loan   Society  v.   Boyd,  155   Cal.  193 662 

Higginbotham    v.   Campbell,    85    Ga.    639 2 

Hill   V.    Montgomery,    184    111.    220 112 

Hill   V.   Eldridge,    126    Mass.    234 629 

Hobllt   V.    Howser,    171    111.    App.    19 613 

Holloman  v.   So.  Ry.  Co.,  172  N.  C.  372 639 


gi6  Cases  on  Evidence 

Paob 

Hoisting  Machine  Co.  v,  Goelier  Iron  Works,  84  N.  J.  L.  504 661 

Howard    v.    McDonough,    77    N.    Y.    592 134 

Hodges    V.    Percival,    132    111.    53 490 

House    V.    Metcalf,    27    Conn.    631 .• 145 

Hough taling  v.   Kelderhouse,   2   Barb.    (N.   Y.)    149 158 

Hudson  V.  C.  &  N.  W.  R.  R.   Co.,   181   111.  323 144 

Humes   v.  O'Bryan   &  Washington,   74   Ala.    64 284 

Hutcheis  v.  Cedar  Rapids  &  Marion  City  R.  R.  Co.,  128  la.  279 443 

I. 

I.  C.  R.  R.  Co.  V.  The  People,  143  111.  434 489 

Illinois  Cent.  R.  R.  Co.   v.   Sutton,  42   111.   438 402 

In  re  Daniel  Burns'  Will,  121  N.  C.  336 396 

Inness   v.   R.   R.   Co.,   168   Mass.   432 400 

Inhabitants  of  N.  B.  v.  Inhabitants  of  W.,  82  Mass.   170 247 

J. 

Jackson  v.  Lawson,  15  Johns.   (N.  Y.)   539 195 

Jackson  \.   State,   81   Wis.   127 203 

Jamestown  Business  Coll.  Assoc,  v.  Allen,  172  N.  Y.  291 756 

Jenkins  v.  Springfield  Reduction  and  Chem.  Co.  et  al.,  168  Mo.  App.  534  747 

J.  J.  Crable   &  Son  v.  O'Connor,   21   Wyo.   460 787 

Johnson  v.   State,   50  Ala.   456 216 

Johnson   v.    Elnien,    94    Tex.    168 677 

Johnson   v.    Manufacturing  Co.,  165   N.   C.   105 715 

Jones  V.    Reilly,   174   N.   Y.   97 70 

Jones   V.    State,   52   Ark.   345 224 

Jones   V.    Fuller,    19    S.    C.    66 .^ 486 

Jones   V.   Royster   Guano   Co..   6   Ga.    App.    508 541 

Jordan  et  al.  v.  Farren  et  al.,  63   Mass.  266 62 

Jordan  v.   State,   81   Ala.   20 433 

Judkins   v.    Woodman,    81    Me.    351 659 

J.  W.  RIpy  &  Son  v.  Art  Wall  Paper  Mills,  41  Okla.  20 778 

K. 

Kankakee  v.   111.   Cent.   Ry.  Co.,  258  111.   368 94 

Keith   et  al.   v.   Kibbe,   10   Cush.    (Mass.)    35 329 

Keesling,   Treas.,   et  al.   v.   Powell,    149   Ind.   372 279 

Keys  V.  City   of  Cedar   Falls,   107   la.    509 384 

King  V.   Hudson   River  Realty  Co.,   210   N.   Y.    467 779 

King   V.    Ashley,    179    N.    Y.    281 49 

King    V,    Randlett,    33    Cal.    318 611 

Kitza   V.    Oregon   Short  Line  Ry.   Co.,   169   111.   App.   609 621 

Kirchner   v.   Collins,   152    Mo.    394 : 841 

Knoblauch    v.    Foglestone,   38    Minn.   352 707 


Table  of  Cases  Selected  917 

Page 

Knop   V.   National   Fire    Ins.    Co.,    107    Mich.    323 842 

Knowlton    v.    Knowlton,    84    Me.    283 660 

Kraimer    v.    State,    117    Wis.    350 123 

L. 

Lake  St.  Elev.  R.  R.  Co.  v.  Shaw,  203  IlL   39 406 

Lane   v.    Moore,   151    Mass.    87 396 

Lane   v.    Boicourt,    128    Ind.    420 52 

Lamar  v.   Micou,   114   U.   S.   218 861 

Larue    v.    Ins.    Co.,    68    Kan.    539 873 

Lander    v.    The    People,    104    111.    248 435 

Lawrence    v.    Tonnant,    64    N.    H.    532 313 

Lebus   V.    Poston,   etc.,   107    Ky.    98 817 

Lessor  of  Scott  et  al.  v.  Ratliffe  et  aL,  5  Peters   (U.  S.)   80 415 

Lindsay  v.  City  of  Chicago,  115   111.  120 311 

Lisman    v.    Early   et    al.,    12    Cal.    282 35 

Lord  Electric  Co.  v.   Morrill,   178   Mass.   304 509 

Loring  v.  Worcester  &  Nash.   R.   R.   Co.,   131   Mass.   469 154 

Louisville  &  N.   R.   R.   Co.  v.   Kice,   109  Ky.   786 268 

Lowman   v.    The    State,    109    Ga.    501 486 

Lynch   v.    Smith,   104   Mass.    52 479 

M. 

Maloney  v.   Winston   Bros.   Co.,   18   Ida.    740 855 

Mann    v.    State,    134    Ala.    1 77 

Marcy   v.   Barnes,   82    Mass.    161 .532 

Martin   v.   Mask,   158   N.   C.   436 750 

March  v.   McNair,   99   N.   Y.   174 821 

Marquet  v.    Ins.   Co.,    128   Tenn.    213 886 

Maurin    v.    Lyon,    69    Minn.    257 815 

Masons  v.   Fuller,   45   Vt.   29 256 

Mathes  v.   Lumber  Co.,   173   Mo.   App.   239 612 

Massey  v.   Farmers  Nat.   Bank,    104   111.   327 105 

Mayor  of  New  York  v.  Second  Ave.  R.  R.  Co.,  102  N.  Y.  572 365 

Mayville  v.  French,   246  111.   434 91 

McLaughlin  v.   Souvereign  Camp  W.   0.  W.,   97   Neb.   71 881 

McLean   v.    State,    16    Ala.    672 225 

McMurtrey   v.   Sparks,   71   Mo.   App.   126 562 

McDonald   v.  Erbes,  231  111.   295 653 

McQuigan  v.   D.   L.  &  W.  R.  R.  Co.,  129  N.  Y.   50 523 

Merritt   v.   Boyden   &    Son,    191    111.    136 576 

Messee-Felton  Lumber   Co.   v.    Sirmans,   122   Ga.    297 286 

Michael  v.  Matson,  81  Kan.  360 11 

Midland   Roofing  Mfg.   Co.   v.   Pickens,   96   S.   C.   286 783 

Miller  v.   Spring  Garden  Ins.  Co.,   202  Fed.  Rep.   442 685 

Miller   v.    Preble,   142    Ind.   632 137 


9i8  Cases  on  Evidence 

Pagk 

Miller  T.   Pendleton,   74   Mass.   547 150 

Miller   Bros.   v.    McCall    Co.,    37    Okla.    643 695 

Miles    V.    Andrews,    153    111.    262 511 

Mima  Queen  and  Child  v.  Hepburn,  7  Cranch   (U.  S.)    291 190 

Mitchell   V.   Colglazies,    106    Ind.   464 473 

Moon   V.   Harris,   122    Minn.    138 626 

Morey   v.   Hoyt,   62   Conn.   542 603 

Morrison   v.   Porter,   35   Minn.   425 472 

Moore  v.   State,  12  Ala.  764 232 

Morrison    v.    Price   &    Co.,    130   Ky.    139 666 

Morrison  v.  Weik,  19   Cal.   App.  139 665 

Moorhouse   v.   Terrill,    111    III.   App.    460 803 

N. 

Naive  v.   Baird,   12   Ind.   318 51 

Neal  V.  R.   R.   Co.,   129   la.   5 829 

Neese  t.  The  Farmer's   Ins.   Co.,   55   la.   602 870 

Newell   V.   Nichols,   75   N.   Y.   78 889 

Nickerson    v.    Spindell,    164    Mass.    25 '. 504 

Northern   Pacific  R.   R.   Co.  v.   Urlin,  158  U.   S.   271 420 

0. 

O'Brien   v.   Frasier,   47  N.   J.  L.   349 163 

Osborne   v.    City   of   Detroit,   32   Fed,    Rep.   36 539 

Oskamp   v.    Gadsen,    35    Neb.    7 503 

Overlook   v.    Hall,   81    Me.    348 658 

Overtoom  v.  C.  &  E.  I.  R.  R.  Co.,  181  111.  323 139 

Owings  et  al.  v.  Hull,  34  U.  S.  607 872 

P. 

Page  V.   Parker,   40   N.   H.   47 87 

Pallister  v,  Camenisch,  24   Colo.  App,   79 701 

Parkhurst  v.   Krellinger,   69   Vt.    375    419 

Pedigo   V,    Com,,    103    Ky,    41 543 

Peebles  v.  O'Gara  Coal  Co.,  239  III.   370 92 

People's  Nat.  Bank  v.  Rhoades,  90  Atl.  Rep.  409    (Del.) 363 

People    V.    Cole,   43   N.   Y.    508 114 

People    V.    Darr,    262    111.    202 117 

People    V.    Robinson,    135    Mich.    511 119 

People  V.   Lem   You,  97   Cal,   224 207 

People  V,   McMahon,  15  N.  Y.   384 176 

People   V.    Ratz,    115    Cal.    132 262 

People   V.   Gage,   62   Mich.   271 424 

People  V.  Green,  1  Denio    (N.  Y.)    614 29 

Peters  &  Roberts  Furniture  Co.  v.  Queen  City  Ins.  Co.,  63  Ore,  382 636 


Table  of  Cases  Sei^Ected  919 

Page 

Peterson  &  Lott  v.  Lott,   11  Ga.  App.   536 •. .  548 

Phelps    V.    Abbott,    114    Mich.    88 806 

Phillips    V.    Chase,    201    Mass.    444 47 

Pitt   V.    Emmons,    92    Mich.    542 652 

Post  V.  Leland,   184  Mass.   601 , 588 

Pratt   V.    White,    132    Mass.    477 337 

Pringey   v.    Guss,    16    Okla.    82 646 

Provident  Sav.   Life  Assoc,   v.   Shearer,   151   Ky.   298 727 

Provision  Co.  v.  City  of  Chicago,  111   111.   G51 502 

Prussing  v.  Jackson.   208   111.   85 614 

Putman   Foundry   &   Machine   Co.   v.   Canfield,    25   R.    I.    548 784 

Q. 

Quarry   Co.  v.   Clements,  38  Ohio   587 769 

R. 

Railway  v.   Com.,   110   Pa.   St.   100 210 

Railway   Co.    v.    Truskett,   67    Kan.    26 744 

Railway   Co.   v.   Henderson,   57  Ark.   402 358 

Redus  V.  Mattison,  30  Okla.  720 601 

Regina  v.   Roden,  12   Cox  Cr.   Ca.   630. 173 

Regina   v.   Hill,   2   Cox   Cr.   Ca.    259 23 

Re  Mary  A  Myer's  Will,  184  N.  Y.   54 53 

Reutkemier  v.   Nolte,   179    la.    342 58 

Rex  V.  Derrington,  2   Car.  &  P.   650 182 

Richardson  v.   Emery  et  al.,  23  Vt.   220 332 

Richardson    v.    Sketchley,    150    la.   393 .' 733 

Riggs  V.   Sterling,   60   Mich.   644 123 

Riley   v.    Boehm,    167    Mass.    183 343 

Ringhouse  v.   Keever,  49   111.   470 263 

Risher  v.   Madsen,  94  Neb.  72 607 

Roberge   v.    Burnham,    124    Mass.    277 ; 848 

Roberge  v.  Bonner,  185  N.  Y.   265 833 

Robinson  v.  Smith,  111  Mo.   205 328 

Robinson  v.  N.   Y.  Elev.  Ry.  Co.,   175  N.  Y.   219 97 

Roe^ner  v.  Darrah,  65  Kan.  599 393 

Rogers   v.    State,    88   Ark.    451 417 

Rollins   V.    State,    160    Ala.    82 83 

Rollins  v.   Wicker,    154   N.   C.    559 260 

Rose  V.   Order  of  Patricians,   126   Mich.   577 55 

Roosa  V.   Boston  Loan  Co.,   132  Mass.   439 408 

s. 

Samuel  H.   Chute  Co.   v,   Latta,   123   Minn.   69 741 

Saveland   v.   Green,   40   Wis.   431 509 


920  Cases  on  Evidence 

Page 

Sewing   Machine   Co.   v,    Dakin,    86   Mich.    581 574 

S,  E.  Bowser  &  Co.  v.  Fountain,   128  Minn.  198 752 

Sexton   V,    Lamb,    27    Kan.    426 485 

Sharp   V.    Hamilton,    12    N.    J.    L.    109 594 

Shawyer   v.   Chamberlain,   113    la.    742 507 

Sherwood  v.   Sherwood,  45  Wis.   357 724 

Smith  Carey  &  Co.  v.  Live  Stock  Co.,  92  Kan.  5 617 

Smith   V.   Brown,   151   Mass.   338 ^ 609 

Smith  V.  Lehigh  Valley  R.   R.  Co.,   177   N.   Y.  379 533 

Smith   and    Whiting  v.   Easton,    54    Md.   138 .'iOe 

State  V.  Linkhaw,   69   N.  C.   214 538 

State  V.  Anica  Garrett  and  Lucy  Stanley,  71  N.  C.  85 536 

State   V.   Rinehart,   106   N.   C.   787 515 

State  V.  Caldwell,   67  Tenn.   576 516 

State   V.    Isaacson,   8    So.   Dak.    69 540 

State  ex  rel.   Leonard   v.   Rosenthal,   123  Wis.   442 894 

State   of  Iowa  v.  Harvey,   112   la.   416 530 

State   V.    Lovan,    245    Mo.    516 722 

Stanley  v.   Fireman's   Ins.   Co.,   34  R.   I.   491 798 

St.  Louis  &  S.  F.  R.  Co.  v.  Dreyfus  et  al.,  42  Okla.  401 90G 

Sullivan  v.   Kuykendall,   82   Ky.   483 512 

Swan    V.    Thurman,    112    Mich.    416 348 

Swan    et    al.   v.    County   of    Middlesex,    101    Mass.    173 477 

Swayne   v.   Felice,   84  Conn.   147 703 

Sweet  v.   Stevens,   7  R.   I.  375 674 

T. 

Tedens   v.    Schumers,    112    111.   263 104 

The  Bagley  &  Sewall  Co.  v.  The  Saraoac  etc.  Paper  Co.,  135  N.  Y.  626  812 

The  Queen  v.  Thompson,  2  Q.  B.   D.   12 185 

The  Chicago  &  Alton  Ry.  Co.  v.  The  Amer.  Strawboard  Co.,  190  111.  268  361 

The   People  v.    Lehr,    196    111.    361 484 

The  City  of  Delphi  v.   Lowery,   74   Ind.   520 493 

The  A.  T.  S.  F.  R.  R.  Co.  v.  Thul,   29  Kan.  466 527 

The  People  v.  James  Hope,   62  Cal.  291 542 

The  Chicago,  Kansas  &  Neb.  Ry.  Co.  v.  Brown,  44  Kan.  384 597 

The   People  v.   Henkle,   256    111.    584 , 606 

The  Oak  Ridge  Co.  v.  John  Toole,   82  N.  J.  Eq.  541 683 

Throckmorton  v.   Holt,   180   U.   S.    552 438 

Thompson  v.  German  Valley  Ry.   Co.,   22  N.  J.   E3q.  Ill 72 

Thompson   v.   Libby,   34   Minn.    374 686 

Thompson  Lumber  Co.  v.  Interstate  Com.  Commission,  103  Fed.  Rep. 

682     826 

Thurston  v.  Fitz,  91  Kan.  468 218 

Town   of   Jepson,   133   Mich.   673 , 800 

Totten  V.  United   States,  92   S.  C.   105 76 

Tower  v.   Whip,   53   W.   Va.   158 470 

Toll  V.  State,   40  Fla.  169 500 


TABI.E  OF  Cases  Selected  921 

Page 

Townsend   v.   Fontenot,   42    La,   An.   890 714 

"Tralnor  v.    Lee,   City   Treasurer,   34   R.   I.    345 588 

Tracy  v.  The  Union  Iron  Works,  104  AIo.  193 774 

u. 

Ulhleln   V.   Mathews,    172    N.   Y.    154 771 

United   Surety  Co.   v.   Meenan,   211   N.   Y.   39 791 

United   States   v.   Chaves,   159   U.   S.   452 854 

United    States   v.    Perot,    98   U.    S.    428 862 

Union  Pacific  Ry.  Co.  v.  Botsford,  141  U.  S.  250 521 

Union  Central  Life   Ins.   Co.   v.   Pollard,   94   Va.    146 320 

United  States  v.  Macomb,   5   McLane's  Rep.   286 205 

V. 

Veiths   V.   Hagge,    8    la.   163 321 

Vandine   v.   Burpee,  et   al.,   54   Mass.    288 481 

Vantine   v.    Butler,    240    Mo.    521 272 

Vinton   V.   Peck,    14    Mich.    287 T 465 

Vogt  V.   Schienebeck,   122  Wis.   491 768 

w. 

Wade   V.   Withington,   83   Mass.   561 558 

Wall  V.    Lubbock,    52   Tex.   Civ.   App.    408 264 

Watt  V.   Jones,   60  Kan.    201    • 868 

Ward  V.  New.  York  Life  Ins.  Co.,  225  N,  Y.  314 .• 830 

Ware  v.   Allen,   128   U.    S.   590 696 

Warder,  Bushnell  &  Glessner  Co.  v.  Willyard,  46  Minn.  531 553 

Warren   et  al.   v.   Nichols,   47   Mass.    261 200 

Warfield    v.    Railroad,    104    Tenn.    74 124 

Waterman   v.   Whitney,    11   N.   Y.   157 447 

Watson   v.   Lawrence,    134   La.   194 591 

Webster  &  Hubbard  v.   Paul,  10  Ohio   531 679 

Wells   V.    Hays,   93    S.   C.    167 .' 336 

Wentworth  v.  Manhattan  Market  Co.,  216  Mass.  374 780 

Wheaton  Roller-Mill  Co.  v.  John  T.  Noye  Manuf.  Co.,  66  Minn.  156 712 

Whelan    v.    Lynch,    60    N.    Y.    469 ' 374 

Wheeler  v.  United   States,   159   U.   S.   523 19 

Whitman   v.   Heneberry,   73    111.    109 314 

Whittey  Grocery  Co.  v.   Roach,   115  Ga.   918 , 345 

Whitby   V.   Motz,    125    Minn.    40 717 

Wickersham   v.   Johnston,   104   Cal.   407 868 

Wilson  V.   Wright,   8   Utah   215 649 

Wilson  V.   Hayes  et  al.,   40  Minn.   531 555 

Wilson   V.   Vanleer,    127    Pa.    St.    372 469 

Wilson  V.  Coleman  &  Ray,  81  Ga.  297 505 

Wilson  V.   Sheppard,   28  Ala.   623 28 


922  Cases  on  Evidencb 

Page 

"Wiseman  v.  N.  P.  R.  R.  Co.,  20  Ore.  425 604 

Wllkerson   v.    State,   91   Ga.    729 64 

Winn   V.   Peckham,   42   Wis.   493 158 

Wise  V.   Wynn,   59   Miss.   588 252 

Willard  v.   Ostrander,   51   Kan.    481 578 

Wood   V.   Steele,   6   Wall.    (U.   S.)    80 550 

Worthington  v.    Scribner,   109   Mass.   487 75 

Wright  V.   State,   88   Md.   705 % 376 

Y. 

Yale  V.   Comstock,   112   Mass.   267 193 

York    V.    Pease,    68    Mass.    282 128 

Young  V.   Oilman,    46   N.   H.    84 30 

Young  V.  Shulenberg,  165  N.  Y.  385 265 

Young   V.    Jones,    8    la.    220 323 

Young  V.   The  People,   221   111.   51 647 


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